Types of offences and how they are dealt with

Contributed by Marcus Hassall, Blackburn Chambers and current to March 2022.

There are many different types of offences in the ACT. Some offences may be dealt with by a Magistrate, while others must be dealt with by a judge and jury. For some offences, both options are available, and the mode of trial will be determined by choices made by the prosecution, the accused, and/or the court.

Summary offences

An offence which can be dealt with only in the Magistrates Court is a “summary offence”. In the ACT, these are generally less serious offences punishable only by a fine, or by imprisonment for no more than two years.

Examples of summary offences include Driving under the influence (DUI), graffiti, and offensive behaviour.

Prosecutions for the least serious summary offences (those punishable by imprisonment for no longer than six months) must be started within one year of the date of the alleged offence (s 192 Legislation Act 2001).

Indictable offences

In the ACT, all offences punishable by imprisonment for more than 2 years are called “indictable offences”. There is no time limit for commencing a prosecution for an indictable offence. Like summary offences, indictable offences are commenced in the Magistrates Court, but in some cases they then have to be transferred to the Supreme Court (see further below).

Indictable offences which may be dealt with summarily

Some types of less serious indictable offences are able to be dealt with in the Magistrates Court in particular circumstances.

Category 1: Offences punishable by more than 2 years' imprisonment, but no more than 5 years

For offences falling into this category, the prosecutor must elect whether or not to have the case disposed of “summarily”. If the prosecutor elects for summary disposal, the matter must be dealt with in the Magistrates Court, and a lower range of penalties will be applicable (e.g. the maximum period of imprisonment which can be imposed is 2 years).

Some examples of offences falling into this category include assault occasioning bodily harm, motor vehicle theft, and low-level dishonesty offences.

If the prosecutor does not elect for summary disposition, the offence must be dealt with as if it were a "Category 2" offence (see below).

Category 2: Offences punishable by more than 5 years' imprisonment, but no more than 10 years

Offences in this category may be dealt with in the Magistrates Court if both:

• the Magistrate regards the matter as being suitable to be dealt with (i.e. not so serious that it has to go the Supreme Court); and
• the accused person consents to the case being dealt with in the Magistrates Court.

If the matter is dealt with in the Magistrates Court a lower range of penalties will be applicable (e.g. the maximum period of imprisonment which can be imposed is 5 years).

In some cases, an accused person might actually prefer to have his or her matter dealt with in the Supreme Court, even though a higher range of penalties will be applicable if he or she is found guilty. This is because in the Supreme Court the accused is entitled to have his or her case determined by a jury (juries are not available in the Magistrates Court).

The above procedure also applies to:

• offences into Category 1 (i.e. punishable by more than 2 years, but no more than 5 years) where the prosecutor elects not to have the matter dealt with summarily;
• certain offences relating to money or property if the value of the money or property is not more than $30,000;
• the offences of aggravated burglary and aggravated robbery, but only if the prosecutor also consents to summary disposition; and
• all criminal proceedings before the Children’s Court, other than offences punishable by life imprisonment.

Some examples of offences which may be dealt with in this category include theft, fraud, and manufacturing small quantities of drugs.

For offences in this category, if the matter is not able to be dealt with in the Magistrates Court (e.g. the accused does not consent to the matter not being heard in the Magistrates Court), the Magistrate must determine whether there is a case to answer, and, if so, send the matter to the Supreme Court either for trial or (if the accused has pleaded guilty) for sentence.

Indictable offences which must be dealt with in the Supreme Court

Some of the most serious indictable offences – generally, those punishable by more than 10 years imprisonment – can only be dealt with before the Supreme Court. This include offences such as murder, manslaughter and dealing in commercial quantities of drugs.

Even these cases, however, are commenced in the Magistrates Court. The role of the Magistrate in such cases is to determine whether there is a case to answer, and, if so, to send the matter to the Supreme Court either for trial or (if the accused has pleaded guilty) for sentence.

Trials in the Supreme Court - by jury or by "judge alone"

Once proceedings are in the Supreme Court, for some types of offences the accused will be entitled to elect whether to have his or her case determined by a "judge alone", rather than by a jury. An accused person might make this election because the case is very technical, or because the accused believes that his or her case will receive more impartial consideration by a judge than a jury. The accused person's election has to be made before the accused knows the identity of the judge who will preside over his or her trial.

The "judge-alone" procedure is not available in relation to numerous categories of offences, such as murder, manslaughter, and most sex and child exploitation offences. Trials in these matters must be heard before a jury.