Summary Offence in Australia

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A charge for an offence can proceed to the Magistrate or before a District or Supreme Court Judge. The Magistrate only handles Summary offences, including indictable crimes that are treated summarily. However, a matter that proceeds to the Supreme Court is dealt with as an indictable offence.

How the Court or legislation handles a charge depends on lots of factors;

• Whether the charge is stipulated as a Summary/Indictable offence,
• The Magistrate concludes such matters on the committal hearing,
• The maximum penalties available for such an offence,
• Presence of aggravating circumstances for such crime,
• And any other factors the Magistrate or Judge Considers.

Legislation of Crimes across Australia varies slightly depending on the jurisdiction. State offences are handled in the respective courts and under their legislations.

There are similarities in how the States handle summary offences. However, individual State legislation and Acts have peculiarities.

The Commonwealth prosecutes and charges all crimes under the two primary legislation for Commonwealth related crimes in Australia;

• Criminal Code Act 1995 (Cth),
• Crimes Act 1914 (Cth).

These legislations define and explain the circumstances of behaviours and actions that lead to a criminal offence or other offences. The legislation also prescribes punishments for such violations and other programs that may be available.

What is a Summary Offence in Australia?

Generally (but not always) the legislation in various States and Territories of Australia consider offences with maximum jail sentences over two (2) years to be treated as indictable offences in Australia. All other (less serious) offences are Summary Offences and are concluded in a Magistrate Court.

When Indictable Offences can be heard Summarily

Some indictable offences are treated summarily in the Magistrate court (Local Court). Section 4J (1) of the Crimes Act 1914 (Cth) explains these offences and the circumstances that can make them dealt with as summary offences. Usually, where the prosecutor and the defendant agree, and such offence carries sentencing not more than ten years, the matter can be heard summarily before a Magistrate.

Indictable offences that are dealt with in a Magistrate Court usually have a reduced “maximum penalty”. Most defendants will prefer to have their charge heard summarily because it will help them get lesser sentencing.

What are the possible penalties for a Summary Offence?

Summary offences usually carry less severe penalties compared to indictable crimes. Generally, a Commonwealth Magistrate will not sentence you to more than one (1) year imprisonment for a summary offence. Other States and Territories stipulate the punishment for a summary offence to be not more than two (2) years.

Also, with a strong argument and other extenuating factors in your offence, you can apply for other mitigating programs.

What are the conditions in sentencing for a Summary Offence?

The Magistrate considers a lot before sentencing an offender for summary offences. If imprisonment is harsh for the crime, the Court will consider other alternatives to rehabilitate the offender. The same charge of a Commonwealth summary offence may not receive the same sentencing depending on several elements of the summary offence like;

• Nature of the crime,
• Criminal records; lenient sentencing on first-time offenders,
• Impact of the violation to the victim,

Many other custom alternatives are sentencing the Magistrate can grant the offender, some of which are;

• Non-conviction sentencing

The Magistrate finds a person guilty and punishes the offender for the offences but does not record any conviction or crime against them. It means they don't have to ever worry about a conviction record for such an offence.

However, the Magistrate may issue some correctional or community-based recommendations as conditions for the program.

• Conditional Release Orders

Under some sections of the Crimes Act 1914 (Cth), a person can have their imprisonment term partially or entirely removed. The Court will then exchange such imprisonment terms for a community program or other programs of Good Behaviour.

Primarily, the conditional release orders run the same period as the original imprisonment term. And the person may be issued parole or Community Corrections Officer.

After such periods, the conviction will not appear on the person’s Nationally Coordinated Criminal History Check or their criminal records in general. Also, the person may never serve the prison term imposed.

What offences are treated Summarily in a Magistrate?

Crimes that the Commonwealth handles summarily in a Magistrate court are less severe and impact the victim or community. Some of these offences are;

• Public disturbance/brawls (e.g. Affray Offences),
• Minor drink driving offences settled before a Magistrate,
• Minor speeding offences,
• Repeat Police cautions,
• Common assault offences,
• Minor theft offences,
• Minor traffic offences settled in Court,
• And other violations with fines not exceeding 600 penalty units,
• Indictable Offences that are sent to the Magistrate.

What are the various State and Territory legislations for Summary Offences?

The Commonwealth legislation for summary offences covers violations and misdemeanours that relate to a Commonwealth area or region. However, Australia's various States and Territories have individual laws that define the peculiarities of Summary offences in their States and Territories.

Summary Offences in New South Wales (NSW)

Summary offences are concluded in a Local Court and are minor cases of violations. The maximum penalty a Magistrate can impose for such crimes within NSW is a 2-years imprisonment term.

The definitions and selection of these offences are in the Summary Offences Act 1988 (NSW).

The Law also allows certain indictable offences to be heard summarily in the Local Court if all parties agree. And it takes less time to complete summary offences compared to indictable ones.

Entering a Plea;

An accused person can either plead guilty to a charge on hearing the matter or opt to adjourn and prepare for the case.

If the accused pleads "not guilty", the Court may adjourn the matter two more times before sentencing. It allows the Court to listen to all sides and evidence before imposing a sentence.

Children and Adult Court

The Summary Offences Act stipulates a Children Court hears all summary matters for juveniles (under 18) and an Adult Court otherwise.

Domestic Violence

The Section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), prohibits a person from going against the terms of an apprehended violence order. Such a person will be guilty of a summary offence and receive a two years imprisonment term.

Summary Offences in South Australia (SA)

The Magistrate Court only handles summary offences and other indictable offences that are treated summarily.

Summary offences are usually minor violations and attract far lesser penalties than indictable offences. The Criminal Procedure Act 1921 (SA) defines the following conditions for a summary offence;

• Offences without imprisonment and a maximum fine of less than $120,000,
• With maximum imprisonment of 2 years,
• Excluding robbery offences, Arson, Violent or sexual offences,
• Dishonesty cases where the value is less than $2500.

The Act (s 52) also stipulates a time limit for such an offence to be prosecuted. It includes;

• Two years to lay a complaint, or
• Six months if an expiation notice is given for the offence.

In a Magistrate Court, a defendant may enter a guilty plea on hearing the offence or plead to adjourn the case. The Magistrate will adjourn the case to allow all parties to prepare their arguments with relevant witnesses.

Summary Offences in the Australian Capital Territory (ACT)

Section 190 of the Legislation Act 2001 defines a Summary offence.

The Magistrate Court handles all summary offences matter under the State. Summary offences under the legislation do not attract penalties of more than a two years imprisonment term. However, any other offence outside of this is treated as an indictable offence.

The Magistrate will also attend preliminary; hearings of all cases (indictable) transferred to the Supreme Court.

The first step to a summary offence case is the first hearing or appearance. It is the first time both parties are present in Court, and the Magistrate can issue sentencing if the accused pleads guilty. However, the matter can be adjourned if the accused requests a preparation for their case.

Summary Offences Western Australia (WA)

The Criminal Code Act Compilation Act 1913 (WA) stipulates two types of offences;

• Simple offences, or,
• Crimes.

All simple offences are dealt with summarily in a Magistrate Court. Depending on the circumstances around the crime, a simple violation can only attract a maximum of 3 years imprisonment.

Some examples of simple offences are;

• Possessing or use of illegal drugs (Misuse of Drugs Act 1981)
• Driving under the influence (Road Traffic Act 1974)
• Going over the speed limits (Speeding offences )
• Offences of Common Assault ,
• Public disturbance,
• BAC driving offences,
• Minor stealing offences

Limitation period

There is a limit to when summary offences are prosecuted in Western Australia. The legislation stipulates that all summary charges must be prosecuted within 12 months of the alleged crime.

However, an indictable offence may be prosecuted any other time.

Either Way Offences

Such violations are described as where there are two different penalties for that offence. It means such crime can be dealt with summarily in a Magistrate Court or otherwise. If the violations are dealt with summarily or as indictable offences depends on the circumstance around the crime.

Examples of “either way” offences are;

• A crime of fraud causing bodily harm

The offence attracts a 5-year imprisonment sentence when dealt with on indictment (7 years for aggravation). However, the Magistrate only issues two years maximum penalty term for the same offence and a $24000 fine (3 years and $36,000) for aggravated circumstances.

Other examples include;

• Fraud offences (section 409),
• Drink driving offences,
• Indecent assault (section 323),
• Offensive public Act (section 202).

The defendant can make an application under section 5(2) of the Criminal Code Act Compilation Act 1913 (WA) to hear the "either way" offences tried on indictment instead. The application may be based on;

• ✔ The seriousness of the offence and the adequacy of the Magistrate for such offence,
• ✔ Whether other members of the group are tried on indictment,
• ✔ The discretion of the justice,
• ✔ If the charge is part of a broader charge or violation.

Summary Offences in Queensland (QLD)

Summary offences are minor offences in Queensland. They must be prosecuted within 12 months of the conduct. Only a Magistrate Court can hear a Summary offence in Queensland. Similar to WA, the Summary Offences Act 2005 (QLD) refers to them as “Simple offences”.

However, the Magistrate court can also assess other indictable offences before they proceed to the District or Supreme Court. This hearing does not issue any sentencing but only assess the validity of whether there is an indictable offence.

The maximum penalty for a Summary offence in Queensland is three years. However, a Magistrate may impose four years imprisonment for Drug offences and Alcohol-related matters.

Summary Offence in Victoria (VIC)

The two categories of offences in Victoria under the Crimes Act 1958 (Vic) are;

• ✔ Summary and
• ✔ Indictable offences.

The summary offences are only dealt with in a Magistrate Court with lesser punishments than indictable offences. A single charge penalty of summary offence in a Magistrate Court will not exceed two years imprisonment terms.

Indictable offences may be heard in a Magistrate Court, however, if both parties agree to this.

The Summary Offences Act 1966 (Vic) allows the Magistrate to employ their discretion when imposing punishments. It is prevalent not to register a conviction when the Magistrate sentences a person for a summary offence. Instead, they may include other rehabilitation programs they consider helpful to the matter.

Summary offences in Victoria include those described under the Act like;

• ✔ Public disturbance; for example, drinking in public (section 13),
• ✔ Use of obscene language in public (section 17)
• ✔ Assault offences in Victoria (section 24)

Limitation period

The prosecutor must commence all charge applications for a summary offence within 12 months that the crime happened.

The Magistrate can hear some indictable offences if all parties agree to settle the matter summarily. However, it must go through the lengthier and more expensive process of a District Court if any of the parties do not agree.

Summary Offences in Tasmania (Tas)

Section 13 of the Sentencing Act 1997 (Tas) issues the maximum penalty for a summary offence in the Magistrate is a 12-month imprisonment term. However, for repeat offenders, the Magistrate may also impose up to 5 years imprisonment.

A summary hearing involves all matters concluded in a Magistrate Court. It also includes any indictable issues dealt with summarily in a Magistrate court.

Some of them include;

• ✔ Minor traffic offence,
• ✔ Minor Drug offences in Tasmania,
• ✔ Speeding offences,
• ✔ Minor fraud offences in Tasmania
• ✔ Petty stealing crimes in Tasmania.

There are various other summary offences that cut across other legislation in Tasmania.

Summary Offences in the Northern Territory (NT)

The Summary Offences Act 1923 (NT) defines how summary offences are handled. It includes all minor crimes and violations dealt with in a Magistrate Court. The Magistrate Court consists of courts that can hear certain matters like;

• Juvenile Court,
• Court of summary jurisdiction,
• Local Court,
• Family matters Court
• Small Claims Court
• Work Health Court.

Other matters that cannot be heard in these Courts as specified in the;

• Criminal Code Act 1983 (NT) and,
• The Summary Offences Act of the NT;

Are referred to a Supreme Court Judge or Jury.

Summary offences in Northern Territory attract lesser maximum penalties of 2 years imprisonment (section 3 (4) of the Criminal Code Act 1983).

However, certain indictable offences can be handled summarily in a Magistrate Court if all parties agree (s 121A, Justice Act).

Some examples of summary offences in NT are;

• Consorting among known offenders (s55A)
• Valueless Cheques (s60)
• Persons who are suspected of possessing stolen goods (s61)
• Fraud other than false pretence (s60A)
• Playing musical instruments to annoy (s76)
• Stealing domestic animals (s54)
• Obscenity (s53)
• Disturbing Religious Worship (s46C)
• And other offences listed in the Summary Offences Act 1923 (NT)

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