If you have been charged with a crime, it’s important to know what kind of criminal charge you have received.
In particular, it’s important to note if you have been charged with a summary offence, an indictable offence or an offence that could be prosecuted either way. If you’ve been charged with a crime, you may need to seek out a criminal lawyer in Perth, WA for legal advice and legal representation.
The following outlines the different types of criminal charges that can be prosecuted in Western Australia, why this distinction matters and how you can tell what type of charge you’ve received.
Which Court Am I Going To?
Determining what you have been charged with will generally give you an idea of which court your matter is going to be heard in.
Summary (or simple) offences are finalised in the Magistrates Court and are generally considered ‘less serious’ offences resolved through a hearing.
Indictable offences are more serious offences which are resolved by a trial or plea in the higher courts, either the District Court or the Supreme Court.
‘Either way’ offences are those that are initially indictable, but a court can elect for the charge to be ‘heard summarily’ in the Magistrates Court upon application.
Generally, a legal matter heard in the Magistrates Court will result in a less serious punishment than matters heard in the higher courts.
Simple or Summary Offences
A simple or summary offence is a more minor offence which is exclusively resolved in the Magistrates Court of Western Australia.
Simple or summary offences include minor assaults, shoplifting, drug possession and most traffic offences.
These offences will be specified as a ‘simple offence’ in legislation. For example, the offence of drug possession is outlined under section 6(2) of the Misuse of Drug Act 1981, which simply states:
A person who has in his or her possession or uses a prohibited drug commits a simple offence.
The penalty for this offence is outlined under section 34(1)(e) of the Act which states:
a simple offence under section 5(1)(e), 6(2), 7(2), 7A(3) or 31(1) is liable to a fine not exceeding $2 000 or to imprisonment for a term not exceeding 2 years or both
Indicatable Offences
An indictable offence is a more serious offence, which will be determined in either the District or Supreme Court.
Indictable offences include most criminal offences known by the public including murder, rape, kidnapping or causing grievous bodily harm. Most offences outlined under the WA Criminal Code are indictable offences, unless specified as ‘either way’ offences.
For example, murder is outlined under section 279 of the Code, which states:
(1) If a person unlawfully kills another person and —
(a) the person intends to cause the death of the person killed or another person; or
(b) the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or
(c) the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life, the person is guilty of murder.
…
(4) A person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless —
(a) that sentence would be clearly unjust given the circumstances of the offence and the person; and
(b) the person is unlikely to be a threat to the safety of the community when released from imprisonment,
in which case … the person is liable to imprisonment for 20 years.
Either Way Offences
An ‘either way’ offence is one that could be prosecuted as an indictable offence, but is allowed by legislation to be prosecuted as a simple or summary offence and resolved in the Magistrates Court upon election.
Either way offences include fraud, indecent assault and criminal damage.
In determining whether an either way offence could be determined summarily, the court will consider:
- whether the accused would be sufficiently punished if dealt with summarily;
- whether a co-accused is to be tried on indictment;
- whether the matter is part of a course of conduct of the accused;
- it is in the interest of justice for this to occur; and
- any other relevant sentencing considerations.
Either way offences can be identified by how penalties are framed in relevant legislation, including both an ‘indictable’ and ‘summary conviction’ penalty. For example, section 444 of the Criminal Code outlines the offence of criminal damage which states:
(1) Any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable —
(a) if the property is destroyed or damaged by fire, to life imprisonment; or
(b) if the property is not destroyed or damaged by fire, to imprisonment for 10 years or, if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 14 years.
Summary conviction penalty: for an offence where —
(a) in a case where subsection (1)(b) applies; and
(b) the amount of the injury done does not exceed $50 000,
imprisonment for 3 years and a fine of $36 000.
