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Summary Offence NSW

Summary Offences NSW

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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;

  1. What court your matter will be heard in;

  2. The process by which your matter will be determined; and

  3. 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.

  1. A term of imprisonment;

  2. A suspended sentence;

  3. A monetary fine;

  4. A community corrections order;

  5. A suspended licence;

  6. 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.

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.

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.

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.

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.

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