Indictable offence

KEY TAKEAWAYS

Criminal charges are broadly categorised as either indictable or summary. Indictable offences are crimes that can be dealt with in the District or higher court. Many indictable offences can be dealt with summarily in the local court. Indictable offences are also categorised into 'table 1', 'table 2' and strictly indictable offences. Table 1 offences are more serious than table 2 offences. Summary offences must only be dealt with in the Local Court. The Local Court can impose a maximum sentence of up to 2 years imprisonment. In contrast, the District Court does not have such restrictions.

Here for more on the difference between summary and indictable offences.

In New South Wales, there are two main types of charges – namely, ' summary offences' or 'indictable offences'.

The length of the court proceedings, the seriousness of the charges and applicable penalties, and duties upon the defence and prosecution, are largely dependent on this factor.

INDICTABLE OFFENCE MEANING | WHAT DOES INDICTABLE OFFENCE MEAN?

Indictable offences are those that are generally required to be finalised or dealt with in the District Court or Supreme Court.

However, a significant number of indictable offences can be, and now are, dealt with in the Local Court – which is referred to as being dealt with 'summarily'.

Whether an indictable offence can be dealt with in the Local Court, will depend on whether it is labelled a 'Table 1' or 'Table 2' offence.

Serious Indictable Offence

A 'serious indictable offence' is any indictable offence that carries a maximum penalty of imprisonment of at least 5-years or more. This includes life imprisonment, according to section 4 Crimes Act 1900 (NSW) definition.

Indictable Offences Examples | Indictable Offence List

If an offence is a 'Table 1' offence, the prosecution or the defence may elect to have the matter dealt with on indictment in the District Court.

Table 1 offences include:

• reckless wounding,
• causing grievous bodily harm,
• robbery,
• larceny, and stealing or receiving stolen goods over $5,000,
• certain break and enter offences,
• public order offences such as riot,
• escaping lawful custody,
• identity fraud offences,
• stealing a motor vehicle,
• participation in a criminal group,
• drug offences (where the quantity involves more than the applicable indictable quantity but less than the applicable commercial quantity).

If an offence is a 'Table 2' offence, only the prosecution may elect to have the matter dealt with on indictment in the District Court.

Table 2 offences include:

• common assault,
• assault occasioning actual bodily harm,
• sexual touching,
• stalking and intimidation,
• recording an intimate image without consent,
• larceny, and stealing or receiving stolen goods under $5,000,
• animal cruelty,
• possession of implements utilised to break into a premises.

If no election is made, the proceedings will remain to be dealt with in the Local Court.

The prosecution will be required to make an election in a matter, if they intend on doing so, on or by the first return date (a court date to confirm whether evidence has been received), after an order is made for service of the brief of evidence, where an accused enters a plea of not guilty.

If on the first court date for a Table matter, an accused enters a plea of guilty, the prosecution will be entitled to an adjournment for 2 weeks to consider whether or not to make an election.

In the Local Court, a Magistrate is restricted to imposing a maximum penalty of 2 years imprisonment for an indictable offence, or a 5-year aggregate sentence where it involves multiple offences.

This is applicable, even where the maximum penalty of the indictable offence is more than 2 years imprisonment.

Section 267 of the Criminal Procedure Act 1989 (NSW) outlines the maximum penalty that may be imposed for an indictable offence listed in Table 1, that is dealt with summarily.

The section stipulates:

• the maximum term of imprisonment is 2 years, or the maximum term provided by law for the specific offence (whichever is the shorter term),
• a maximum fine of $11,000 (100 penalty units) or the maximum fine provided by law for the specific offence (whichever is the smaller fine).

Furthermore, instead of imposing a term of imprisonment, the Local Court may impose a fine not exceeding $11,000 for a Table 1 offence, where a fine is otherwise not outlined.

Section 268 of the Criminal Procedure Act 1989 (NSW) outlines the maximum penalty that may be imposed for an indictable offence listed in Table 2, that is dealt with summarily.

As outlined, the maximum term of imprisonment that will be applicable is 2 years, or the maximum term provided by law for the specific offence (whichever is the shorter term).

Section 268(2) outlines the various maximum fines which the Local Court may impose for Table 2 offences that are dealt with summarily.

This includes: a $5,500 fine for common assault, sexual touching, recording an intimate image without consent, and taking a car without the consent of the owner.

If the offence is elected upon and proceeds to be dealt with in the District Court, on sentence, the Judge can impose a maximum penalty of more than 2 years.

The maximum penalties, as outlined in the legislation, will be applicable.

Indictable Offence Statute of Limitations

Unlike summary offences, indictable offences do not have a statute of limitations. Effectively, the prosecution can prosecute at any time without a time limit for indictable offences.

Strictly Indictable Offence

Some offences, which are considered the most serious, are labelled ' strictly indictable offences'.

These charges must be dealt with in the District Court or Supreme Court, with there being no 'option' to elect by the defence or prosecution.

Examples of Strictly indictable offences

Strictly indictable offences include the following:

• murder,
• manslaughter,
• infanticide,
• dangerous driving occasioning death,
• sexual assault without consent,
• bestiality,
• kidnapping,
• knowingly deal with proceeds of crime,
• drug offences such as supply or cultivation where it involves more than a commercial quantity.

Indictable offences that are elected upon, or those that are 'strictly indictable', must follow the committal process throughout the Local Court, prior to being committed for the District Court or Supreme Court.

The committal or 'early appropriate guilty plea' is as follows:

1. The first step is where brief service orders are made by the court, which essentially means that the court is ordering the prosecution to serve the evidence that they seek to rely on, on the defence.

2. The second step is where, once the evidence has been served, the defence will confirm that the brief has been served by the prosecution.

3. The third step is where the charge certificate is filed by the prosecution – a charge certificate is a document that specifies the offences that are to be the subject of the proceedings against the accused which sets out the detail of these offences, back-up offences (if applicable), and any offences that are no longer being proceeded with (if applicable).

4. The fourth step is where the matter will be adjourned for the purpose of a 'case conference' being conducted – this will involve the prosecution and defence engaging in discussions and possible negotiations regarding a matter. A 'case conference' certificate will then be filed with the court.

5. Following this, the matter will be listed for committal, where a plea of guilty or not guilty will be entered, advising whether the matter is proceeding to a sentence or a trial.

From this point, the matter will then proceed through to the District or Supreme Court where a sentence or a trial will occur.

WHAT IS A SUMMARY OFFENCE?

A 'summary' offence is essentially an offence that is not 'indictable'.

They are considered less serious than indicatable offences, and include charges such as:

• traffic or driving related charges such as drink driving,
• offensive conduct or language,
• obscene exposure,
• obstructing traffic,
• custody of a knife in a public place.

Summary offences are required to be dealt with in the Local Court before a Magistrate, and generally, carry a maximum penalty of no more than 2 years imprisonment.

As outlined, the Local Court is not able to impose a penalty of more than 2 years imprisonment for a sole offence.

The police may not charge a person with a summary offence, if the alleged incident occurred more than 6 months ago, whereas this time limit is not attached to indictable offences.

Matters heard in the Local Court will generally finalise in a much quicker time period, when compared to indictable offences, as they do not follow the 'committal' process or proceed to the District Court.

MINOR INDICTABLE OFFENCE

A 'minor indictable offence' is defined as an 'indictable offence that's not a serious indictable offence, according to section 4 Crimes Act. A minor indictable offence is therefore an offence that can be dealt with in the District Court if an election is made. These offences do not have a maximum penalty of 5 years of more but are also not 'summary offences'.

DIFFERENCE BETWEEN SUMMARY AND INDICTABLE OFFENCES

The main difference between summary and indictable offences are that indictable offences are more serious offences and summary offences are less serious offences. In addition, summary offences have a statute of limitations of 6 months from day of the alleged offence. Indictable offences don't have a limitation.

IS DRINK DRIVING AN INDICTABLE OFFENCE?

Drink driving is a 'summary offence' and therefore it must be and is commonly dealt with in NSW Local Courts. Drink driving is nor a table 1 or table 2 offence.

IS COMMON ASSAULT AN INDICTABLE OFFENCE?

Common assault is categorised as an 'indictable offence'. It is a table 2 which means that only the prosecution can elect to have the matter dealt with in the District Court but is normally and almost always dealt with in the Local Court in NSW.

IS THEFT AN INDICTABLE OFFENCE?

Theft or larceny are indictable offences. If it involves items worth $5,000 or less it will be a 'table 2' indictable offence. If the theft involves more than $5,000, then it will be an indictable 'table 1' offence.

IS SEXUAL EXPOSURE AN INDICTABLE OFFENCE?

Sexual exposure in the form of a 'sexual act' under section 61KE is a 'table 2' indictable offence in New South Wales. This can includes exposing your penis, buttocks or female breasts without consent. This type of offence is commonly dealt with in the Local Court.

IS STALKING AN INDICTABLE OFFENCE?

The offence of stalk or intimidate under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is an indictable Table 2 offence. It is dealt with summarily in the Local Court unless the prosecutor elects otherwise to have it dealt with in the District Court. It is commonly dealt with in the Local Court.

IS FRAUD AN INDICTABLE OFFENCE?

Fraud offences are generally indictable offences. Whether they are a 'table 1' or 'table 2' indictable offence depends on the type of fraud offence. examples of 'table 2' indictable fraud offences include identity offences under section 192L Crimes Act, offences related to forgery under section 256(2) or (3) Crimes Act. Examples of 'table 1' indictable fraud offences include identity offences under Part 4AB Crimes Act, Blackmail under section 249K Crimes Act, forgery and related offences under Part 5 Crimes Act (except for s256(2) or (3)).

WHY IS MURDER AN INDICTABLE OFFENCE?

Murder is an indictable offence because it is the most serious crime involving the death of a human being. Murder is neither a 'table 1' or 'table 2' indictable offence, it is a strictly indictable offence making it the most serious type of crime.