What is an Indictable Offence in New South Wales?

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Strictly indictable offences are considered to be the most serious criminal offences in New South Wales.
Australia Criminal Law
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An indictable offence is one which can be committed (or referred) to a higher court such as the District or Supreme Court, rather than remain and be finalised in the Local Court.

These offences typically carry maximum penalties of more than two years in prison, and include assaults other than common assault, sexual assaults, larceny, fraud and money laundering offences.

Here's a breakdown of the categories of criminal offences in New South Wales.

New South Wales Offence Categories

New South Wales criminal offences are divided into four categories ranging in ascending seriousness — summary offences, Table 2 offences, Table 1 offences and strictly indictable offences.

Summary Offences

Summary offences generally have maximum penalties of two years or less in prison and are dealt with from commencement to finality in the with in the Local Court.

Examples of summary offences include, as the name suggests, those contained in the Summary Offences Act 1988 such as offensive language and conduct, obscene exposure, obstructing traffic and possession of liquor by minors, as well as offences in Road Transport Act 2013 such as drink driving, drug driving and driving whilst disqualified, less serious drug offences contained in the Drug Misuse and Trafficking Act 1985 such as drug possession and possessing drug equipment, contravening an AVO under the Crimes (Domestic and Personal Violence) Act 2007 and a number of offences in the Crimes Act 1900 such as sexual act and various discrete stealing and unlawful possession offences.

Table Offences

Table Offences are referred to in that way because they are contained in Tables 1 and 2 of Schedule 1 to the Criminal Procedure Act 1986.

Table 2 Offences

Table 2 offences are generally considered to be the less serious of those contained in the Tables. These offences remain in the Local Court unless the Director of Public Prosecutions ‘elects' (chooses) to commit them up to a higher court, such as the District Court.

The prosecution will consider a number of factors when deciding whether to elect, including the seriousness of the offence itself, the applicable maximum penalty, the need for general deterrence (deterring others from engaging in similar offences) and general deterrence (the need to deter the defendant from committing further alleged offences) and the defendant's personal circumstances, including the extent of any criminal history.

Table 2 offences include common assault prosecuted on indictment (which has a two year maximum prison penalty but is an exception to the rule that a summary offence is one that carries two years or less), assault occasioning actual bodily harm, assault during a public disorder, assaulting police, sexual touching, stalking or intimidation, consorting, possessing housebreaking implements and larcenies that do not exceed $5,000.

Table 1 Offences

Table 1 offences are generally considered to be more serious than both summary and Table 2 offence. These offences dealt with in the Local Court unless either the Director of Public Prosecutions or the defence elects to have them committed to a higher court.

Table 1 offences include sending documents containing threats, assaulting police causing actual bodily harm, aggravated sexual touching, recklessly wounding or causing grievous bodily harm, poisoning, robbery or stealing from a person, riot, affray, various identity, forgery and corruption offences, blackmail, supplying at least an indictable quantity but less than a commercial quantity of prohibited drug, predatory driving, dangerous driving occasioning grievous bodily harm and larceny of more than $5,000.

Strictly Indictable Offences

Strictly indictable offences are considered to be the most serious in New South Wales. These offences must be committed to a higher court – they cannot be finalised in the Local Court.

Strictly indictable offences include such serious offences as murder, manslaughter, commercial drug supply, intentionally wounding or causing grievous bodily harm and sexual assaults.

Commonwealth Offences

Commonwealth offences apply across Australia and are contained in dozens of pieces of legislation including Criminal Code Act 1995, Customs Act 1901, ASIC Act 2001, Corporations Act 2001 and Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

Commonwealth offences are divided into two categories: summary offences and indictable offences.

Summary offences are those which carry a maximum prison sentence of 12 months or less, while indictable offences carry a maximum of more than 12 months.

Similarly to New South Wales offences, summary Commonwealth offences are heard and finalised in the Local Court.

Indictable offences which carry a maximum penalty of no more than 10 years in prison may remain in the Local Court with the consent of the Commonwealth Director of Public Prosecutions and defence. When determining its position in that regard, the CDPP will consider factors similar to those taken into account by New South Wales prosecutors when deciding whether to elect.

Indictable offences that carry a maximum prison sentence of more than 10 years in prison must be committed to a higher court, in a similar manner to strictly indictable New South Wales offences.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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