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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;
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;
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.
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.
Summary offences are disclosed on national police checks in accordance with Australia’s spent convictions legislation.
Some indictable offences are treated summarily in the Magistrate court (Local Court in NSW). 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.
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.
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;
Many other custom alternatives are sentencing the Magistrate can grant the offender, some of which are;
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.
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 criminal record check or their criminal records in general. Also, the person may never serve the prison term imposed.
The spent convictions scheme allows eligible offences to be removed from a person's criminal records. However, a conviction can only be eligible if it includes more than a 30-months imprisonment term. Also, the offender must satisfy other "Good Behaviour" conditions imposed by the program.
Crimes that the Commonwealth handles summarily in a Magistrate court are less severe and impact the victim or community. Some of these offences are;
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 NSW 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 in NSW stipulates a Children Court hears all summary matters for juveniles (under 18) and an Adult Court otherwise.
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 in NSW. Such a person will be guilty of a summary offence and receive a two years imprisonment term.
A summary offence committed in NSW will show up on a national police check in NSW. The offence will get disclosed in accordance with NSW’s spent convictions legislation.
The Magistrate Court in SA only handles summary offences and other indictable offences that are treated summarily.
Summary offences are usually minor violations in SA and attract far lesser penalties than indictable offences. The Criminal Procedure Act 1921 (SA) defines the following conditions for a summary offence;
The Act (s 52) also stipulates a time limit for such an offence to be prosecuted. It includes;
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.
A summary offence that is committed in the state of South Australia (SA) will show up on a criminal record check in SA. The offence will get disclosed in accordance with SA’s Spent Convictions Scheme.
The Magistrate Court in the ACT 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.
A summary offence that is committed in the ACT will show up on a national police background check in the ACT. These types of offences get disclosed in accordance with the ACT’s Spent Convictions Legislation.
The Criminal Code Act Compilation Act 1913 (WA) stipulates two types of offences;
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 in WA are;
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 in Western Australia
Such violations are described in the Act 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;
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;
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;
A summary offence that is committed in WA will show up on a national police check in WA. Summary offences are disclosed in accordance with the WA’s Spent Convictions Legislation.
Summary offences are minor offences in Queensland. They must be prosecuted within 12 months of the conduct. Only a Magistrate Court in QLD 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 in QLD and Alcohol-related matters.
Summary offences that are committed in the state of Queensland will show up on a national criminal history check in QLD. Summary offences are disclosed on criminal history checks in accordance with the QLD’s Spent Convictions Legislation.
The two categories of offences in Victoria under the Crimes Act 1958 (Vic) are;
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;
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 that are committed in the state of Victoria will in most instances show up on a national criminal background check in Victoria. Summary offences are disclosed on criminal background checks in accordance with Victoria’s Spent Convictions Scheme.
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;
There are various other summary offences that cut across other legislation in Tasmania.
Summary in the state of Tasmania will appear on a criminal record check in Tasmania. A summary offence gets disclosed in accordance with Tasmania’s Spent Convictions Scheme.
The Summary Offences Act 1923 (NT) defines how summary offences are handled in the NT. 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;
Other matters that cannot be heard in these Courts as specified in the;
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;
Summary offences that are committed in the Northern Territory will appear on a national criminal history check in the NT. The offence gets disclosed in accordance with the NT’s Spent Convictions Scheme.
Criminal Code Act 1995 (Cth) - https://www.legislation.gov.au/Details/C2021C00183
Crimes Act 1914 (Cth) - https://www.legislation.gov.au/Details/C2021C00127
Summary Offences Act 1988 (NSW) - https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1988-025
Crimes (Domestic and Personal Violence) Act 2007 (NSW) - https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-2007-080
Criminal Procedure Act 1921 (SA) – https://www.legislation.sa.gov.au/LZ/C/A/Criminal%20Procedure%20Act%201921.aspx
Legislation Act 2001 (ACT) - https://www.legislation.act.gov.au/a/2001-14/
Criminal Code Act Compilation Act 1913 (WA) - https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_218_homepage.html
Summary Offences Act 2005 (QLD) - https://www.legislation.qld.gov.au/view/html/inforce/current/act-2005-004
Summary Offences Act 1966 (Vic) - https://www.legislation.vic.gov.au/in-force/acts/summary-offences-act-1966/131
Sentencing Act 1997 (Tas) - https://www.legislation.tas.gov.au/view/html/inforce/current/act-1997-059
Criminal Code Act 1983 (NT) - https://legislation.nt.gov.au/en/Legislation/CRIMINAL-CODE-ACT-1983
Summary Offences Act 1923 (NT) - https://legislation.nt.gov.au/en/Legislation/SUMMARY-OFFENCES-ACT-1923
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