There are two types of main charges in NSW labelled as “indictable offences”, and “summary offences”.
The period of time your case will take in court to finalise, whether police are still allowed to prosecute you for an offence that occurred more than 6 months ago, and the seriousness of the penalties you are faced with, all depend on whether your offence is labelled an indictable offence, or summary offence.
What is an “Indictment”?
This is basically a document, called a ‘court attendance notice’, which, when served on you, generally requires that you attend court to answer a criminal charge. It is what starts the criminal proceedings.
What is an “Indictable Offence”?
These are certain criminal charges that may be prosecuted with a ‘court attendance notice’ commencing criminal proceedings.
‘Indictable offences’ are criminal charges generally required to be dealt with in the District Court or Supreme Court.
A significant number of Indictable offences can be (and often are) dealt with in the Local Court (‘summarily’). This is because, for most indictable offences, the accused person, or the prosecutor (depending on the indictable offence) can actually elect that it be dealt with in the District Court, instead of the Local Court.
Criminal charges that are labelled as “indictable offences” are more serious than charges labelled as “summary offences”.
“Indictable offences” carry maximum penalties of more than 2 years imprisonment.
Certain criminal charges are labelled “strictly indictable offences”. These are charges that must be dealt with in the District Court- there is no option to elect by the accused or prosecutor. These are considered even more serious than indictable offences.
See the following link for a list of indictable offences.
A Magistrate is restricted in imposing a penalty of a term of imprisonment of no more than 2 years, for an indictable offence, that ends up getting dealt with in the Local Court. Even if the maximum penalty of the indictable offence is more than 2 years imprisonment.
If the indictable offence is eventually dealt with in the District Court on sentence, the Judge in the District Court can impose a maximum penalty of more than 2 years.
What is a “Summary Offence”?
“Summary offences” are charges that are NOT considered “indictable offences”.
Certain charges labelled as “summary offences” are required to be dealt with “summarily”. This means they are to be dealt with in the Local Court, in front of a Magistrate, not in the District Court.
“Summary offences”, generally, carry a maximum penalty of no more than 2 years imprisonment. The Local Court, in any event, cannot impose a penalty of more than 2 years. This is often an advantage in having a matter dealt with in the Local Court, instead of the District Court.
Summary offences include, indecent exposure, offensive conduct or language, and traffic or driving related charges such as drink driving. They are considered less serious than indicatable offences.
Differences Between an “Indictable Offence” and “Summary Offence”
The differences between a “summary offence” and an “indictable offence” include:
- An indictable offence is a more serious offence than a summary offence.
- Time limit: the prosecution cannot proceed with a charge against you, for a summary offence, if the alleged offence occurred more than 6 months ago. (s179 Criminal Procedure Act). There is no such time limit attached to an indictable offence.
- Summary offences carry a maximum penalty of no more than 2 years imprisonment. The local court, generally, also has a limit of imposing a maximum penalty of no more than 2 years imprisonment under section 267 and 268 of the Criminal Procedure Act 1986 (NSW). This is significant because “indictable offences” can carry maximum penalties of much more than 2 years imprisonment for the Judge to impose.
- A matter heard in the Local Court, instead of the District Court, will be finished quicker than if it goes through the proceedings of the District Court
- A summary offence must be dealt with in the Local Court, whereas an indictable offence gives the prosecutor, and the accused, the option to elect for it to be heard in the District Court, in front of a jury.
Indictable offences include, indecent assault, assault occasioning actual bodily harm, certain larceny and fraud offences, break and enter, certain drug offences, firearms, stalking and intimidation, common assault.
On many occasions, a case involving an indictable offence can be prepared, and influenced, in such a way for it to stay in the Local Court (instead of the prosecution taking it to the District Court). On occasions, an experienced criminal lawyer, can also successfully convince the prosecution to drop the charges all together.
For how to get a section 10 or the new CRO to avoid a criminal conviction in court, see our blog on how to avoid a criminal conviction.