Have you committed a summary offence? Are you confused about what to do next?
A summary offence is a criminal offence which is dealt with by way of a local court (or in some states, a Magistrate’s court). More serious offences (indictable offences) carry penalties in the Supreme court.
That is not to say however that summary offences are not serious offences, but rather are offences which carry a lesser penalty than that of indictable offences. No matter which type of offence you have been charged with you should seek legal advice immediately to avoid making any irreversible mistakes.
What Type of Lawyer Should I see?
If you are seeking legal advice in relation to a criminal offence then you need to see a criminal lawyer. Criminal lawyers are specialists in the field of criminal law and have the knowledge and skills required to simplify the process for you. A criminal lawyer will be able to advise of the following;
- What court your matter will be heard in;
- The process by which your matter will be determined; and
- The types of penalties you could face.
It is important to be fully aware of the process for determination in particular as there are certain things you can do to make your case look better to the court. An example of this may be engaging in drug or alcohol counselling if your matter relates to substance abuse or engaging in an anger management program if your matter relates to family violence. One of the most impressive case management strategies you can engage in is that of self-improvement. It is more attractive to the court to see that you have taken initiative to change your behaviour instead of being forced into counselling or programs by the court as penance. This can also improve the sentence you may receive as it shows remorse for your actions through change.
It is also important to understand the types of penalties you may face for your actions so that you can be prepared for what may lay ahead. This will be explained in more detail below.
What court process will I need to follow?
In the local court, the process for summary offences is different depending on which plea you decide to make. It is important to properly advise your lawyer of which plea you seek to enter into so that they can make the appropriate representations to the court.
If you are pleading guilty to your charge then the process is simple and often completed quite quickly. You will be asked to stand and tell the Magistrate you are pleading guilty and you will either be sentenced immediately or provided a separate date to return on to receive your sentence. It can work favorably for you if you choose to plead guilty (in some circumstances) because it means you are taking responsibility for your actions. As stated above however it is important to properly instruct your lawyer about the circumstances of the offence so that they can investigate.
This may mean that on the first occasion an adjournment is sought so that evidence can be provided by the prosecution as part of discovery. This will allow your lawyer to determine on what grounds the prosecution deem you are guilty and it allows them to view any evidence on file. This evidence may be, video footage, police interview footage, security camera footage, written statements, affidavits of witnesses, etc. If proper disclosure is not sought and provided then your lawyer cannot appropriately act in your best interest.
If you seek to plead not guilty to your offence then the process is longer. You will need to inform the court of your intention to plead not guilty and then a hearing will be set for the matter. This is a chance for the evidence to be provided and tested for accuracy. You will also have the opportunity to give evidence yourself as to your innocence. At the conclusion of the hearing, a date will be set for a decision and sentencing to be handed down. This is often some weeks after the hearing depending on the courts availability. If you are found guilty of the offence after having plead not guilty then you can receive a harsher penalty as you have wasted the courts time.
At any time during your court process you can change your plea from not guilty to guilty and this plea will be accepted by the court. This will often be the case for people once disclosure has been provided and they have had a chance to see what evidence prosecution have compiled against them.
What Types of Penalties May I Receive?
As with all offences, there can be a range if possible penalties depending on severity and circumstances surrounding the offence. Below is a breakdown of the most common penalties an individual will receive for a criminal offence which is summary in nature. Remember, sometimes you can receive more than one penalty for your offence, i.e. a fine and a suspended sentence.
- A term of imprisonment;
- A suspended sentence;
- A monetary fine;
- A community corrections order;
- A suspended licence;
- Bail conditions.
The above is not a comprehensive list however it encompasses the majority of penalties an individual may commonly receive. The most interpretive of the penalties is that of a community corrections order. Community corrections orders can have different conditions associated depending on what type of offence they relate.
For example, drug related crimes would require conditions that the offender not consume drugs, adhere to regular drug tests and potentially, that the offender engage with a court mandated drug program as well. Whereas an offence relating to stealing charges may require that the offender undertake counselling and weekly check ins at the local police station.
What Is The Maximum Penalty I Could Receive?
For a summary offence, the maximum penalty you are likely to receive is a term of imprisonment. This term of imprisonment can range from just a few months to several years.
Case Study 1
Jesse lives in Sydney New South Wales (NSW) and has been charged with a series of traffic offences. Driving offences are dealt with summarily and form a part of criminal law. All criminal offences are considered serious however driving offences can be particularly serious depending on the circumstances. Jesse has been charged with dangerous driving and was arrested before being served with an infringement notice.
Jesse has spoken to his lawyer and there is security footage placing him in the vehicle at the time of the offence. Jesse was caught drifting in downtown Sydney where he spun out on a corner and smashed into an oncoming car. Thankfully there were no injuries. Jesse’s lawyer advises that he has no choice but to plead guilty to the charge which will likely result in two years imprisonment. Jesse pleads guilty and receives a 2 year term of imprisonment and will be eligible for parole in 18 months.
Case Study 2
Alice has been charged with assault after she got into a bar fight in Sydney. The matter is to be heard in the local court. Alice is concerned that she will serve a term of imprisonment and has sought legal advice so that she can build a criminal defence. Alice’s lawyer reviewed the evidence and advised that she should plead guilty to the offence.
Alice attends court and pleads guilty to assault. The judge hears that this is Alice’s first offence and that it is out of character for her. Alice’s lawyer advises that she has two primary school aged children and that it is employed on a full time basis as a school librarian. The judge is lenient on Alice and gives her a suspended sentence along with a fine. Alice is not allowed to commit any further offences during the next 2 years.
What Legislation Do I Need To Consider?
If you have been charged with a summary criminal offence, then you need to consult the Summary Offences Act. The Summary Offences Act details each offence which falls within the local courts jurisdiction and how those matters will be dealt with. The Act highlights which summary offences are less serious in nature and which summary offences are more serious.
The act also highlights the elements needed to prove each summary offence. This is not an easy thing to interpret and should be left to a legal professional.
What Is The Difference Between the Local Court and Supreme Court?
The local court (often referred to as Magistrate’s Court or District Court in other states) is a lower court to the Supreme Court and deals with different criminal offences. The Local Court deals with summary offences whereas the Supreme Court deals with indictable offences. Indictable offences carry harsher penalties usually than summary offences and are decided by way if trials and a jury instead of a singular Magistrate.
Generally, summary offences are decided by one singular Magistrate who weighs the evidence and decides whether the accused is guilty or not guilty and subsequently what the punishment will be. With indictable offences, a jury decides whether the accused is guilty or not guilty and then the judge decides what the punishment will be. A jury is a group of 12 people who are specially selected from a pool of potential jurors.
In all courts however, the process is the same for how the hearing or trial is run. The prosecution run the case for the state and the accused has their own independent lawyer to run their case for them.
How Is A Jury Selected?
When a jury is selected, they are selected from a pool of jurors who have been called up for jury duty. The pool of jurors must attend the court before each trial is begun (their jury period could be a couple of weeks long) and their numbers are selected at random. If your number is selected then you enter the court room and sit in front of the prosecution and defence counsel. You are then essentially vetted by the lawyers.
This means that firstly it is identified whether you have a conflict with the matter and then you are assessed for other factors. These factors may be age, ethnicity, gender, etc. These markers are assessed depending on the case. Essentially, each counsel wants to try and maximize the verdict. A prosecutor may want a pool of older jury members who are against drug offences as they feel they will be more likely to be against such a crime. A defence lawyer on the other hand would seek younger jurors potentially as they may be more open to drug use. This is only one example of many.
If a juror is not agreed, they are released from their service for that trial. The process continues until all 12 juror places have been filled.
Can a Summary Offence Become An Indictable Offence?
There are some summary offences which become indictable offences if they are recommended for the Supreme Court. This may be because the charges are upgraded as the matter progresses or more charges are added at a later date. Sometimes the matter can be a mixture of summary and indictable offences meaning the matters are dealt with in both courts.
Case Study 3
George lives in New Town, New South Wales. He has been charged with two counts of stealing and one count of common assault. The prosecution is seeking to have the common assault charge upgraded to aggravated assault and to have it heard in the Supreme Court. Aggravated assault carries a harsher penalty than common assault and is a more serious offence. If George is found guilty of the offence, he is likely to serve a period of imprisonment exceeding 2 years. This is in addition to any jail time he may be required to serve for his summary offences.
The stealing offences may seem inconsequential compared to an offence of assault however, George has been found guilty of stealing offences four times previously and he is likely facing jail time if he is found guilty again.
Case Study 4
Sophie has been charged with a series of drug offences as well as two sexual assault offences. The sexual offences are criminal offences and the drug offence will be treated summarily. Sophie is looking at serving a significant term of imprisonment if she is found guilty of sexual assault. The penalty is up to 8+ years imprisonment.
Sophie unfortunately reacted badly to the charges and since her last court date has been charged with further offences for dangerous driving. Sophie also has some outstanding driving offences from 6 months prior which have not yet been dealt with. Sophie has sought legal advice for her predicament. She realizes that she is likely going to jail and will not receive a fine as a punishment, Sophie still owes $4,000 for her previous offences. Sophie’s lawyer advises her to plead guilty to all of her offences so that she does not waste the court’s time and perhaps is afforded some leniency.
What are the Differences Between Summary and Indictable Offences?
One of the key differences between summary and indictable offences is that for a summary offence, a solicitor or agent may appear in court on behalf of the accused. For indictable offences, the accused must appear in court on every occasion. For a summary offences, the accused is only required to appear in court at the Magistrate’s direction. Indictable offences are more serious and are dealt with in legislation separately from the Summary Offences Act.
As noted above, summary offences are heard in the local court whereas indictable offences are heard in the Supreme court which is a high court. Indictable offences are subject to determination by trial whereas summary offences are not bound by that process. You will find that if a person has been charged with a summary offence they will be issued an infringement notice which on many occasions is subject to a fine instead of a term of imprisonment. Basically, summary offences are less serious offences than indictable offences.
Which Summary Offences Are Considered Less Serious?
All offences are serious however there are some summary offences which are deemed less serious than others. Driving offences for example are considered less serious than sexual offences or violence offences which are dealt with summarily. Driving offences can also be dealt with simply by way of a fine following an infringement notice whereas other crimes need to be heard and sentenced.
Summary offences are split into categories which are heard in the local court in different court lists. As an indication, there are separate lists for family violence offences, drug offences and traffic offences as well as separate lists for hearings, pleas and sentencing. When a matter comes before the court, prosecution have the chance to make their case about how the matter should run, i.e whether the mater is to proceed to hearing straight away or whether the matter is subject to further investigation and may become a Supreme Court matter.
Case Study 5
Jesse was caught speeding 3 times the limit and was pulled over by police. When police pull Jesse over they run his name and discover that this is Jesse’s first offence and he has not received a traffic infringement notice before. The officer’s serve Jesse with an infringement and tell him that he needs to pay a fine and will be subject to demerit points. Jesse is free to leave and will not need to appear in the local court for this charge.
Case Study 6
Alisha has been partying hard and in addition to alcohol she consumed some ecstasy tablets at a friend’s house. Alisha gets into the car to leave and thinks that she will be fine to drive home because she only lives a few blocks away. It is well after midnight at this point and she figures there will be no one around.
Alisha backs out of the driveway and takes off down the road. She turns into her street but at the last minute sees a rabbit dart across the street. Alisha swerves but she loses control of the car and crashes into a tree in her neighbours’ yard. The police are called and they breath test Alisha as part of their routine investigation. The office also notices that Alicia’s eyes are glassy and they ask her if she has consumed any drugs. Alisha confesses that she has and she is arrested and taken to the police station. She automatically has her licence suspended and is bailed to appear in court at a later date.
Am I Able to Make Bail If I Have Been Remanded Prior To Court?
If you have been remanded prior to court, it is essential that you engage a firm of lawyers who can assist you with a bail application. A bail application will be heard by the court and police will have the opportunity to either endorse or oppose the application. A bail application is a criminal defence put to the Magistrate detailing why the accused should be granted bail until their matter is determined. This may be because the accused has children in his care or is a carer for a family member who will be without that care if remanded. The accused may be indispensable at their job or be engaging in rehabilitation programs which suggest he can make greater progress outside a term of imprisonment.
It is important to note that in most cases, individuals are only remanded into custody prior to sentencing in more extreme cases and usually if it is a repeat offence for the offender. This is because until a determination of guilt, an accused has not been convicted of a crime and should not be forced to serve a term of imprisonment prematurely. A longer period of imprisonment prior to determination of the matter is more likely with indictable offences.
Case Study 7
Abigail lives in Sydney New South Wales and is to appear in the local court on five charges of driving while under the influence. Abigail has been charged three times previously with the same offence and has been convicted on all occasions. Abigail’s lawyers have told her that she is likely to serve a period of two years imprisonment if she is convicted. There is a possibility that Abigail’s sentence can be reduced to one years imprisonment with one suspended given that Abigail has begun undertaking drug and alcohol counselling however, given her history, it is unlikely she will escape imprisonment altogether.
Abigail attended the local court and entered a plea of guilty in relation to each charge. The Magistrate was pleased with Abigail’s honesty and could see that she has been working hard on rehabilitation.
Case Study 8
Isaac has been charged with three family violence offences and has sought advice from two separate lawyers. Both lawyers agree that the evidence against Isaac is substantial and that he likely to be convicted of the offences. However, Isaac maintains his innocence and wants to have a hearing on the matter. Isaac’s lawyers have strongly advised against taking the matter to hearing as they fear that he will be sentenced with the maximum penalty if he is convicted.
Isaac ignores his lawyers advice and pushes for his matter to be heard. Police read the facts of each offence into evidence and detail the violence that Isaac is alleged to have committed. Isaac’s lawyers put forward his criminal defence and advocate that Isaac has begun anger management counselling as well as seen his GP and obtained a mental health plan to begin seeing a psychologist.
Nonetheless, the magistrate is concerned that Isaac has shown little remorse for his crimes. Isaac’s criminal history indicates that he has been charged twice previously for similar crimes. Isaac is sentenced to two years imprisonment with the option of early release in 12 months for good behaviour.
Can A Magistrate Reverse Their Decision?
A Magistrate needs to be careful in what sentence they give a person as they are unable to reverse the decision. The decision can be appealed to a different court however this is a long and expensive process. Given the penalty for summary offences are generally less serious than the penalty for indictable offences, it is likely that if you choose to appeal a summary offence decision, it will take longer than it would to simply serve the sentence. It is also possible to receive an even harsher penalty after appealing the decision.
Case Study 9
Sally has been convicted for a driving charge in the local court and has been sentenced to a period of 12 months licence disqualification. Sally’s lawyers advised her that this was the likely sentence however she feels she should have been given a shorter period of disqualification given it was her first offence. What Sally fails to take into account is that she was driving three times the speed limit when she was arrested. Sally’s appeal of her decision is not successful.
Helpful NSW links
- NSW Local Court – Going to court
- Summary Offences Act 1988 (NSW) | Crimes Act 1900 (NSW)
- Judicial Commission – Guilty plea discounts & sentencing
- NSW Police – Crime & reporting
- LawAccess NSW | Service NSW
Need specific guidance on a summary charge? Speak with our criminal defence team or call (02) 8806 0866 for a confidential consultation.
