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Summary vs Indictable Offences in NSW

Summary vs Indictable Offences in NSW

Table of Contents

What is the difference between a summary offence and an indictable offence in NSW?

A summary offence is a less serious charge that a magistrate hears and finalises in the Local Court, with no jury. An indictable offence is a more serious charge that can be prosecuted before a judge and jury in the District or Supreme Court. Section 3 of the Criminal Procedure Act 1986 (NSW) puts it simply: an indictable offence is one that may be prosecuted on indictment, and a summary offence is any offence that is not indictable.

The label matters because it decides which court you end up in, whether a jury decides your guilt, the maximum penalty a court can give you, and how long police had to charge you in the first place.

Here is the part that catches most people out. Plenty of indictable charges in NSW never go near a jury. They are dealt with summarily in the Local Court by a magistrate, exactly like a summary offence, unless somebody elects otherwise.

What is a summary offence in NSW?

Summary offences are the everyday matters that fill the Local Court list. Offensive conduct under section 4 of the Summary Offences Act 1988 (NSW) is one, carrying a maximum of 6 penalty units or 3 months imprisonment. Most traffic offences under the Road Transport Act 2013 (NSW), including drink driving, speeding and driving while suspended, are summary offences too.

Section 6 of the Criminal Procedure Act sets out which offences must be dealt with summarily. In short, an offence is summary if an Act says it is, if an Act requires it to be dealt with summarily, or if the maximum penalty is not more than 2 years imprisonment and the offence is not listed in Table 1 or Table 2 to Schedule 1.

For you, a summary offence means a magistrate hears it, there is no committal process, there is no jury, and the whole matter usually resolves in a handful of court dates.

What is an indictable offence in NSW?

Section 5 of the Criminal Procedure Act works the other way. An offence must be dealt with on indictment unless some Act permits or requires it to be dealt with summarily. Indictable offences then split into three practical groups, and the group yours falls into changes everything about how your case runs.

Strictly indictable offences

These can only be finalised in the District or Supreme Court. Murder under section 19A of the Crimes Act 1900 (NSW) carries life imprisonment. Sexual assault under section 61I carries 14 years. Charges like these start in the Local Court, but only for the committal process. Once that finishes the matter moves up, and unless a judge-alone order is made, a jury decides the verdict.

Table 1 offences: you or the prosecution can elect

Under section 260 of the Criminal Procedure Act, an indictable offence listed in Table 1 to Schedule 1 is dealt with summarily in the Local Court unless the prosecutor or the person charged elects to have it dealt with on indictment. Larceny is a useful example. Where the value of the property exceeds $5,000 the charge sits in Table 1, so either side can push it up to the District Court.

Table 2 offences: only the prosecution can elect

Table 2 works the same way, except only the prosecutor can elect. You cannot force a Table 2 matter into the District Court. Common assault under section 61 of the Crimes Act sits in Table 2, as does assault occasioning actual bodily harm under section 59, and larceny where the value does not exceed $5,000.

If nobody elects, section 261 says the matter is dealt with summarily as if it were a summary offence. That is what happens in the overwhelming majority of Table 1 and Table 2 matters.

Why the difference actually matters

The maximum penalty changes with the court

This is the practical heart of it. Sections 267 and 268 of the Criminal Procedure Act cap what the Local Court can do. For a Table 1 or Table 2 offence dealt with summarily, the maximum term of imprisonment is 2 years, or the maximum set by law for that offence if that is shorter.

Take assault occasioning actual bodily harm. Section 59(1) of the Crimes Act carries a maximum of 5 years, and 7 years if committed in company under section 59(2). Keep it in the Local Court and the ceiling drops to 2 years. If the prosecution elects and the matter goes to the District Court, the full maximum is back on the table. That is why an election is a serious development in a case and not a formality.

Fines are capped too. For most Table 1 offences the Local Court can fine up to 100 penalty units, which at $110 per unit under section 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is $11,000. For most Table 2 offences the cap is 50 penalty units, or $5,500.

There is a further limit worth knowing if you are facing several charges. Under section 58 of the Crimes (Sentencing Procedure) Act, the Local Court generally cannot stack sentences so that the last one ends more than 5 years after the first one started.

How long police have to charge you

Section 179 of the Criminal Procedure Act gives police 6 months from the date of the alleged offence to commence proceedings for a summary offence. Miss that window and the charge is out of time. The limit does not apply to an indictable offence being dealt with summarily, so a Table 1 or Table 2 charge can be laid well after the 6 month mark.

Appeals

If a magistrate convicts or sentences you in the Local Court, section 11 of the Crimes (Appeal and Review) Act 2001 (NSW) gives you a right of appeal to the District Court, and you have 28 days from sentence to lodge it. That right is narrower if you were convicted in your absence or after pleading guilty, in which case leave is required under section 12.

How do you work out which one you have been charged with?

Look at your court attendance notice. It names the Act and the section you are charged under. From there, check whether that section appears in Table 1 or Table 2 to Schedule 1 of the Criminal Procedure Act. If it appears in neither and carries more than 2 years, it is strictly indictable.

Watch the subsections. Section 59(1) and section 59(2) of the Crimes Act are different offences with different maximums. Value thresholds matter too, since $5,001 worth of stolen property puts a larceny charge in a different table to $4,999 worth. Getting this wrong changes the advice you get, so it is worth having someone check the charge properly.

Which court will your matter be heard in?


Frequently asked questions

Does an indictable offence always mean a jury trial?

No. Most indictable offences in NSW are listed in Table 1 or Table 2 and are finalised by a magistrate in the Local Court unless somebody elects otherwise. Only strictly indictable charges, and matters where an election is made, go to the District or Supreme Court.

Only for Table 1 offences. Section 260 lets the person charged elect for a Table 1 matter to be dealt with on indictment. For Table 2 offences, only the prosecutor can elect. It is rarely in a defendant’s interest to elect, because the penalty ceiling rises sharply, so get advice before making that decision.

It can. A conviction for a summary offence is recorded like any other conviction. A court can instead deal with the matter without recording a conviction, most commonly under section 10 of the Crimes (Sentencing Procedure) Act, but that outcome has to be argued for.

Not necessarily. The tables reflect how the offence is dealt with procedurally, not a strict ranking of seriousness. Assault occasioning actual bodily harm is a Table 2 offence and can still result in a full time custodial sentence.

Charged with something and not sure how serious it is?

Working out whether you are facing a summary charge, a Table 1 charge or something that will end up in the District Court is the first thing that shapes your defence. Call Blackridge Law on 02 9159 9010 and we will look at your court attendance notice and tell you where you stand.

This article is general information about NSW law and is not legal advice for your situation. Get advice about your own matter before making any decision.

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