David H Cohen and Co Solicitors - family lawyer - criminal lawyer - traffic lawyer

1. What are the differences between Summary Offences and Indictable Offences?

In general terms Summary Offences are considered less serious and can be dealt with in the Local Court before a Magistrate.

Indictable Offences are generally more serious offences. Under the Criminal Procedure Amendment (Indictable Offences) Act 1995, Indictable Offences fall into three groups: those which are considered more serious crimes and can only be dealt with before a Judge and jury in the District or Supreme Court; those which cannot be tried summarily; those which can be dealt with summarily in the Local Court for which the maximum term of imprisonment is two years. The Crimes Legislation Further Amendment Act 2003 allows magistrates to accumulate sentences up to five years.

The Prosecution have a discretion about which matters should proceed so it is important to get the correct legal advice to ensure your case is dealt with appropriately.

Summary Offences generally have a time limitation whereby they should be commenced within 6 months after the alleged offence is said to have occurred.

Indictable Offences do not have a time limitation on the commencement of the proceedings and the maximum penalty is set out in the relevant Acts which is generally over 2 years.

The strictly indictable offences include murder, man-slaughter, robbery, very serious sexual assault offences, drug offences involving large quantity of drugs and offences relating to serious injury.

These offences must be dealt with either in the Supreme or District Court before a Judge or Jury.

2. How the matters brought before the Court?

There are usually 2 main ways that a person may find himself as the Defendant before a Court in a Criminal Prosecution namely:

a. Charged by the police; or

b. The person is provided with a Court Attendance Notice or summons.

The matter will proceed according to whether the Defendant enters a plea of guilty or not guilty.

In all Criminal Offences except those involving strict liability, the prosecution has to prove the elements of the offence with a high onus of proof that offence has to be proved beyond a doubt. Specifically, if all those elements can be proved to the Court’s satisfaction meeting that high onus of proof then the offence is established against the Defendant and the Court enters a conviction for that offence against the Defendant.

However, the Prosecution has discretion about what to prosecute and what matters will proceed to a trial to proceed.

We can help you with advice about Bail, pleas and discussing pleas with the Police.

3. In relation to strict Indictable Offences, if a plea of guilty is entered, what happens?

In strictly indictable matters a full Brief of Evidence still has to be served before the matter can be referred to the Higher Court, District Court or Supreme Court.

Depending on the charge and whether a plea of guilty is entered the Defendant may be committed for Sentence Hearing.

There is a complex series of alternatives which follow such as a full pre-sentence report to assist in determining the sentence to be imposed as well as the facts which both the Defendant and the Prosecution have to agree on. and order the prosecution a full pre sentence report to be prepared by Probation Parole Service that will assist the Court in determining the sentence to be imposed.

The Criminal Procedure Act 1986 must be followed and we can help you with the appropriate course to follow.

4. Shouldn’t the Accused who plead a guilty receive a Sentence discount?

If a Defendant pleads guilty the first available opportunity at the Local Court in a Summary matter or for a strictly Indictable Offence in the Higher Court, District Court or Supreme Court, the Defendant is generally given a 25% discount in relation to the sentence. As well as the plea of guilty other mitigating matters such as self-defence may be taken into account when sentencing according to the Crimes (Sentencing Procedure) Act 1999 (NSW).

E-MAIL: INFO@DEMOLINK.ORG