Summary Offences in New South Wales (NSW)

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The offences with the lesser form of punishment are called summary offences. Not only because these offences have more minor penalties, but they are generally handled in a Local Court. Summary offences are also dealt with faster and in a less complex manner compared to indictable offences.

Some indictable offences are even elected to proceed to the Local Court for hearing rather than higher Courts. And if these offences are heard in the Local Court, they will be treated Summarily, including getting the same punishment as summary offences.

Summary offences are disclosed on a Nationally Coordinated Criminal History Check.

What is a Summary Offence?

Summary offences are broadly listed in the Summary Offences Act 1988 (NSW). In general, summary offences are less serious than indictable offences and attract imprisonment terms of less than two (2) years.

The Act also contains the description and penalties for such crimes. Other summary offences are outlined in the following Acts;

• Crimes Act 1900 (NSW),
• Road Transport Act 2013 (NSW),
• Drug Misuse and Trafficking Act 1985 (NSW),
• Electoral Act 2017 (NSW),
• Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Examples of some summary offences in New South Wales

The Summary Offences Act 1988 lists similar offences under the parts of the Act. And these offences are always decided by a Magistrate in a Local Court.

Part 2, Division 1 of the Act outlines behaviours that constitute a Summary Offence.

Offensive Conducts

It is an offence if a person is found guilty of acting or behaving offensively in a;

• Public place,
• School, or
• Licensed premises.

It also includes the use of offensive languages or where the person commits the offence within hearing distance of such areas.

The Court can impose punishments up to 6 penalty units or three months imprisonment term.

Obscene exposure

It is an offence to knowingly and without legal reasons expose private parts or genitalia in public. It may even be an aggravating circumstance to commit this act in a school zone.

The Court can issue penalties up to 10 penalty units or six months imprisonment terms.

Obstructing Traffic

It is an offence to block the free flow and passage of vehicles, vessels, motor cars and other conveyance. It matters less how or in what manner the person commits the crime. It is enough that their reckless or intentional actions blocked the traffic.

For such offences, the Court can impose penalties up to 4 penalty units.

Other offences include;

• Damaging or desecrating protected places - attracts penalties up to 40 penalty units,
• Damaging fountains - 4 penalty units,
• Unauthorised entry of vehicles or boats.

Illegal Possession of liquor

It is an offence for you to possess/consume liquor in a public place while you are under 18 years. The Court can impose penalties up to a $20 fine.

However, the person can argue against this charge by proving that;

• A responsible adult supervised them, or
• They had a reasonable excuse to possess/consume the liquor.

All relevant information and terms for such offences are stated in the Liquor Act 2007 (NSW).

Violent Disorder

Section 11A of the Summary Offences Act 1988 outlines and prohibits all acts relating to violence while in public. It includes all actions that cause a person or group to fear for their lives or safety by your actions.

If the Magistrate finds you guilty of this offence, it can impose penalties up to;

• Ten penalty units or six months imprisonment.

In determining this offence summarily, it is immaterial in the Court that;

• If the Act was committed in a company; 3 or more persons threatened simultaneously,
• Whether there was a person present at the scene,
• The offence happened in a public or private place.

The violent disorder also applies to all destructive acts against property as well as towards a person.

Dangerous Behaviours (Summary offences)

The Summary Offences Act considers it an offence to be in possession of offensive implements in a public place or a school.

For such offences, the Court describes penalties up to 50 penalty units or two years imprisonment.

The Court can also order that the offensive equipment be surrendered to the Crown.

If such act or offence was committed by a child;

• Under the age of 18 years,
• In a school zone,

The parents will be guilty if they knowingly authorised or permitted the Act. The Court may impose five penalty units fine on them.

It is also an offence under section 11F of the Act to sell a knife or other dangerous implement to a child.

Loitering of Convicted sexual offenders

Convicted sexual offenders are always advised against frequenting child dominated areas. If such persons without reason loiter or wait around;

• A school zone, premises or area,
• Public places frequented by children,
• Places where children are present,

The Court will find them guilty of the offence. Under section 11Q of the Summary Offences Act 1988, this offence attracts 100 penalty units or two years imprisonment.

The Crimes Act 1900 (NSW) outlines all convictions and details about sexual offences in New South Wales.

Intimidatory Use of a Vehicle

It is an offence to operate a vehicle in such a way as to;

• Harass or intimidate another person, or
• Cause a sound person to fear for their safety.

The Court can issue penalties up to 6 penalty units for such offences.

Some of the proceedings or court hearings for these offences may overlap with the prohibitions in the Road Transport Act 2013. However, a person cannot be convicted of the same crime under various legislations.

Prostitution

Section 15 of the Summary Offences Act prohibits living off a prostitute. It also includes anyone above 18 years;

• Who lives with a known prostitute, and
• Has no visible means of income/job

The law stipulates a maximum punishment of 10 penalty units or 12 months imprisonment.

Part 3 of this Act also includes;

• Causing or inducing (by any means) a person to become a prostitute,
• Using public or particular areas to solicit for prostitution,
• Allowing your 'unique ' establishments (spa, sauna etc.) to be used for prostitution,
• Advertising premises to be used for prostitution,
• All illegal means of soliciting for prostitutes/Clients.

Hunting

It is an offence to enter into private land and hunt for any animal in the land without the land owner's consent. The Court can impose penalties up to;

• 20 penalty units or,
• 12 months imprisonment,

or

• Both, based on the severity of the violation.

Driving Offences

The Road Transport Act 2013 outlines acts that fault the general use of a motor or other vehicle in public. Most of the offences listed in the Road Transport Act 2013 are summary offences.

Some of them include;

• Speeding offences
• Driving with BAC levels greater than 0.05,
• Negligent acts causing infractions,
• Refusing to take a Police test (e.g, breath test),
• Driving while disqualified.

However, these offences are not exclusive to a Local Court. Some of them are dealt with through infringement notices rather than a Court. It means that not all summary offences are settled in the Local Court. The law resolves some violations through infringement notices/payments.

Drug Offences

Part 2 Division 1 of the Drug Misuse and Trafficking Act 1985 lists the Drug and related offences handled summarily.

Domestic Violence

Section 14 of the Crimes (Domestic and Personal Violence) Act 2007 prohibits all acts that fault an apprehended violence order (AVO). Going against an AVO issued by a NSW Local court is considered a summary offence. Such offences carry maximum penalties of up to 2 years imprisonment. Breaching the conditions of an AVO will show up on a nationally coordinated criminal history check.

Domestic Violence includes all other offences relating to domestic Violence like;

• Assault,
• Sexual assault-related cases,
• Threats to Violence.

However, these offences are usually handled on indictment in higher courts. And attracts severe penalties.

Minor Offences not dealt with in a Magistrate Court

Not all minor offences are handled in a Local Court or Youth Court (for children). Some crimes are settled without going to Court, even if they fall within the jurisdiction of the Magistrate. These matters are resolved through the Infringement Notice system.

Infringement Notice

The infringement notice is also called the quasi-criminal system. Offences that qualify for the infringement system don't need to be brought before a Local Court. When the official issues an infringement notice, payment of fines can settle them.

Such penalties are usually common in Driving Offences in the Road Safety Act 2013 (NSW). For example, if a traffic or Police officer pulls you over for a driving offence, it can be quickly settled by paying your tickets or abiding by the infringement notice.

The Drug Misuse and Trafficking Act 1985 also governs summary offences of possessing small quantities of drugs of dependence in New South Wales.

What are indictable offences?

Indictable offences are more severe and grievous offences under NSW legislation. These offences are primarily handled in higher courts (District/Supreme) and may incur punishment as severe as life imprisonment terms.

Some examples of these offences are;

• Rape/Serious sexual crimes,
• Murder,
• Manslaughter,
• Treason,
• Armed Robbery,
• Burglary,
• Kidnapping,
• Serious fraud offences,

Indictable Offences that are heard summarily

Although out of the scope of the summary offence, it still appears in some summary offences procedures. Certain indictable offences can be heard summarily as long as both parties agree to them. If the Local Court hears an indictable offence summarily, it can only impose punishments that are allowed for a Local Court.

These offences are outlined in the Crimes Act 1900;

• Minor theft offences, (s154 of the Act)
• Minor fraud (s192 of the Act)
• Assault offences (s59A)

The Criminal Procedure Act 1986 (NSW) lists two ways to try an offence summarily;

Table 1 offences - are indictable offences handled summarily unless either the prosecution or defence elects to go to a higher court.

• Reckless wounding/inflicting grievous bodily harm,
• Aggravated indecent assault,
• Dangerous driving that doesn't lead to death,
• Break-in offences,
• Stealing motor vehicles,
• Escaping from prison.

Table 2 offences - indictable offences that can be dealt with summarily unless the prosecutor elects. The defence does not get the chance to elect which Court hears this case. It includes;

• Stealing or receiving stolen goods under $5 000;
• Malicious damage under $5,000;
• Possessing an implement to break into a building;
• Assault occasioning actual bodily harm, indecent assault;
• Operating a vehicle without the owner's consent.

Who prosecutes a Summary offence?

The Police will generally prosecute a summary offence rather than the Office of the Director of Public Prosecutions. However, all indictable matters are charged by the Director of Public Prosecutions (ODPP).

What are the general procedures for a Summary Trial

Most people prefer to hear a case summarily (when possible under the legislation) because it is;

• Faster,
• Less formal,
• Incurs lesser penalties than would be for an indictment trial.

Hearing a case summarily usually involves these processes;

• Filing of the Charges

The Police will submit a copy of the charge to the Magistrate through the Registrar or the Court Clerk. The charge document will inform the Court of all cases and evidence relevant to the summary offence.

After filing the charge, the Court may issue a warrant to arrest the accused (if they are not already in custody). However, for a summary offence, and when the matter does not cause a potential detriment, the Magistrate will issue a summons or court attendance notice. The Police may also arrest a person without a warrant if it is necessary to do so.

• First Mention Hearing

It implies the first time the charges are read to the hearing of all parties in the Court. The official must read these charges in the presence of the accused or their legal representatives.

If the defendant pleads guilty to the charges read, the Magistrate can issue immediate sentencing, and the matter finalised the same day. However, if the accused contests all or part of the charges, the Magistrate will adjourn the matter for a Contest hearing or a Summary Case conference.

• The Summary Case conference

The case conference is an arrangement or meeting that allows both parties to agree on parts of the charges. At a Case conference, both parties may decide to settle and resolve some Case details outside the Court.

• Contested hearing

A Contested hearing is held if the defendant chooses to plead not guilty of the charges. The Court sets another date for contested mention and lists all the adjusted charges from both parties. At the contested hearing, the Magistrate will allow the prosecution to prove the offence through all forms. The defendant also gets the right to prove their innocence of the matter.

Both parties may call in witnesses to confirm their arguments. However, the Court must be pre-informed of these witnesses and how long each hearing will take.

At the end of a Summary offence trial, the Magistrate Court may either;

• Impose sentencing,
• Dismiss the Case,
• Acquit the defendant.

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