Introduction

In New South Wales, minor offences, known as summary offences, get dealt with swiftly in the Local Court since they aren’t as serious as indictable offences. These include things like drink-driving, small-scale drug offences, and traffic violations. If you find yourself in a pickle with these, you might have to shell out for fines or even face up to two years in prison.

Understanding the framework of summary offences is essential for individuals charged with a minor offence, as it outlines potential penalties and available defences. This article provides a comprehensive overview of summary offences in NSW, detailing associated penalties and exploring possible defences to equip readers with the necessary knowledge to navigate these legal matters effectively and with confidence.

Definition of Summary Offences

Understanding the Summary Offences Act 1988 (NSW)

Summary offences are considered less serious than indictable offences and are typically handled in the Local Court. The Summary Offences Act 1988 (NSW) plays a crucial role in defining and regulating summary offences in New South Wales. This Act outlines various minor offences, but other summary offences are also mentioned in different legislation, such as the Crimes Act 1900 (NSW). While summary offences generally carry lighter penalties, they can still result in fines or imprisonment for up to two years. Understanding the provisions of the Summary Offences Act is essential for distinguishing these minor offences from more serious indictable offences, which are dealt with in higher courts such as the District Court or the Supreme Court.

Legal Procedures for Summary Offences

When an individual is charged with a summary offence in NSW, the legal procedures are streamlined to ensure a swift resolution. Typically, the accused is summoned to appear before the Local Court or the Children’s Court if they are under 18. Upon attending court, the accused can choose to plead guilty, resulting in immediate sentencing by a magistrate, which may include a fine, a good behaviour bond, a community-based order, or a term of imprisonment. Alternatively, the accused may plead not guilty, leading to further court appearances for a contest mention and a contested hearing. During these proceedings, the prosecution will present evidence, and the defence will have the opportunity to review and challenge this evidence. The court may also address practical considerations, such as the need for interpreters or video-link testimony, ensuring that the legal process is accessible and fair.

Penalties for Summary Offences

Financial Penalties and Fines

Summary offences in NSW often carry financial penalties, commonly known as fines, and are given in terms of penalty units. The value of one penalty unit is $110 and is prescribed by the Crimes (Sentencing Procedure) Act 1999 (NSW). Fines will vary in amount based on the nature and severity of the offence that they punish.

For instance, wilfully damaging or defacing a protected place can attract fines of up to 40 penalty units, while obstructing traffic attracts fines of up to only 4 penalty units. Many summary offences are subject to fines as the primary form of punishment, providing a swift resolution without the need for more severe penalties.

Imprisonment and Licence Suspensions

While fines are common, certain summary offences can result in imprisonment of up to two years, and licence suspensions for driving offences. Summary offences relating to domestic violence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) carry penalties of up to two years imprisonment. Driving offences, such as drink-driving or dangerous driving, may also lead to licence suspensions in addition to infringement notices and, in some cases, imprisonment. These penalties serve to address the seriousness of the offence and to deter future violations.

Common Examples of Summary Offences

Public Nuisance and Offensive Conduct

Public nuisance and offensive conduct encompass a range of behaviours that disrupt the peace and decency of public spaces in New South Wales.

Offences under this category include:

• Offensive Language: Using foul or offensive language in public places, schools, or licensed premises. This offence can result in penalties up to 6 penalty units or three months imprisonment.
• Obstructing Traffic: Wilfully preventing the free passage of a person, vehicle, or vessel in a public area. Penalties for this offence can reach up to 4 penalty units.
• Violent Disorder: Engaging in violent behaviour that causes others to fear for their safety. This offence is punishable by up to ten penalty units or six months imprisonment.

These offences are handled swiftly in the Local Court, ensuring that public spaces remain safe and respectful for all members of the community.

Minor Theft and Property Offences

Minor theft and property offences involve the unlawful taking or damaging of property without significant harm or financial loss.

Common examples include:

• Shoplifting: Stealing goods from a store by concealing items and leaving without paying.
• Trespassing: Illegally entering someone else’s property without permission.
• Minor Criminal Damage: Causing minor damage to property, such as damaging fountains or other public fixtures.

These offences are considered less severe than indictable offences but still carry the potential for fines and, in some cases, short-term imprisonment.

Driving Offences

Driving offences are a significant subset of summary offences and are regulated under the Road Transport Act 2013 (NSW). These offences address unsafe and illegal driving behaviours that pose risks to public safety.

Common driving summary offences include:

• Speeding: Exceeding the speed limit set for a particular road.
• Drink Driving: Operating a vehicle with a blood alcohol concentration (BAC) above the legal limit.
• Dangerous Driving: Driving in a manner that is dangerous to the public, such as excessive speeding, aggressive manoeuvres, or impaired driving.
• Failing to Stop After an Accident: This offence is colloquially called a “hit-and-run,” and means not stopping to provide assistance or exchange information after being involved in an accident.

Many of these driving offences can be resolved through infringement notices, allowing drivers to pay fines without attending court, thereby speeding up the legal process.

Other summary offences include electoral offences, minor drug offences, and contravening an Apprehended Violence Order (AVO).

Defences for Summary Offences

Individuals charged with a summary offence in NSW have access to several general defences that can influence the outcome of their case. These defences are applicable across various types of minor offences and are crucial for defendants to understand their legal options.

General Defences

Defendants may argue several general defences against a summary offence. These defences are relevant to various minor offences.

• Lack of Intent
  For some offences, the prosecution must prove that the defendant intended to commit the act. For example, if charged with offensive conduct, the individual might claim there was no intention to offend or cause harm. However, it’s important to note that for other offences, the act itself may be sufficient for a finding of guilt, regardless of intent.
• Consent
  In certain situations, consent can be a valid defence. This is often applicable in cases involving minor assault or activities where all parties agree to the conduct, such as in some sporting events. However, for consent to be a valid defence, it must be freely given, and the person giving consent must have the legal capacity to do so.
• Mistaken Belief
  A defendant might assert that they had a genuine and reasonable mistaken belief regarding the facts that led to the offence. For instance, believing that their actions were lawful when they were not. Importantly, the mistaken belief must be both honest and reasonable, and it must relate to a fact that, if true, would mean their conduct was not an offence.

Specific Defences for Certain Offences

Specific defences address unique circumstances related to particular types of summary offences. These defences cater to the nuances of certain offences, providing tailored legal arguments to defend against specific charges.

• Drug Possession
  Individuals charged with minor drug offences may argue that they were unaware of the presence of the drugs or that they did not have control over them. Successfully proving this to the court can be difficult. Additionally, possessing drugs with a legitimate prescription can serve as a defence.
• Domestic Violence
  In cases involving domestic violence, self-defence is a common and significant defence. Defendants may claim that their actions were necessary to protect themselves or others from imminent harm. It is crucial to note that the self-defence claim must be proportional to the threat they were under. The existence of an Apprehended Violence Order (AVO) does not automatically negate the possibility of a self-defence claim.

Procedure for Summary Offences in NSW

Court Proceedings and Hearings

When charged with a summary offence in NSW, the accused is typically issued a summons to appear before the Local Court, or the Children’s Court if under 18. Failure to attend court in response to a summons generally results in a warrant for arrest. It is important to note that under the Criminal Procedure Act 1986 (NSW), the statute of limitations in NSW is 6 months for a summary offence. This means that a case must be filed within 6 months of the alleged summary offence—after this time, it cannot be filed.

Upon attending court, the accused has two primary options:

• Plead Guilty: The matter may be finalised on the same day, with the magistrate issuing a sentence immediately. The magistrate is the judicial officer who makes decisions about sentencing and remedial orders. Possible sentences include a fine, a conditional release order (CRO), or a term of imprisonment or detention (which is the equivalent of imprisonment for offenders under 18).
• Plead Not Guilty: The case proceeds to a contest mention and then a contested hearing. The purpose of a contest mention is for the court to understand what issues are in dispute, how many witnesses will be giving evidence, and how long the hearing is likely to take. During this process, the prosecution presents a “brief of evidence” to the defence, who are given time to review and challenge it. The court is informed about the issues in dispute, the number of witnesses, the expected duration of the hearing, and any practical requirements such as interpreters or video-link testimonies.

Sentencing and Remedial Orders

After a summary offence is processed in court, the magistrate may impose various types of sentences and remedial orders. The sentencing options depend on whether the accused pleaded guilty or went to a contested hearing.

• Upon Pleading Guilty:
  • Conditional Release Order (CRO): The accused is found guilty, but no conviction is recorded and they must abide by certain conditions. These conditions can be viewed as very similar to a good behaviour bond. This order imposes various conditions on the offender such as rehabilitation or abstention from alcohol/drugs, and states that the offender must not commit further offences, and must appear in court if they do.
  • Fine: Monetary penalties vary based on the offence.
  • Imprisonment: For more serious summary offences, a term of imprisonment may be imposed. It’s important to note the maximum penalty for a single summary offence is two years imprisonment.
• After a Contested Hearing:
  • Conditional Release Order (CRO): Explained above.
  • Combination of Orders: The magistrate may impose a combination of sentences or orders based on the circumstances of the offence, such as a fine and a community-based order.
  • Section 10 Dismissal: The court may prove the offence but dismiss the case without recording a criminal conviction, provided the accused meets certain criteria. These dismissals can either be with no conditions, a condition of a conditional release order (CRO), or conditions where the offender must agree to an intervention program and comply with it.
  • Found Not Guilty: The court will dismiss the case and you will be acquitted with no penalties.

It is important to understand that a conviction generally stays on a person’s criminal record for life.

These sentencing options aim to address the behaviour, ensure public safety, and provide opportunities for rehabilitation.

Conclusion

Summary offences in New South Wales (NSW) are considered minor criminal offences, typically handled swiftly in the Local Court, with penalties ranging from fines to imprisonment for up to two years. Understanding the framework of summary offences, including the Summary Offences Act 1988 (NSW) and available defences, is crucial for individuals charged with such offences. Effective legal advice can help navigate the legal process, potentially mitigating penalties and exploring options like Section 10 dismissals.

Frequently Asked Questions