Our criminal justice system in Victoria deals with summary and indictable offences and the difference between the two is not readily apparent to those unfamiliar with the criminal law.
Paperwork compelling a court appearance will describe an offence as being either summary or indictable
An accused who is bailed, or required to attend Court on a charge and summons will receive paperwork (charge sheet or charge and summons) that specifies whether the offence they are required to answer is either summary or indictable.
Table of Contents
What is a Summary Offence?
A summary offence is generally regarded as a minor offence and one that cannot be determined by way of trial by jury. The term 'summary offence' was previously referred to at law as a 'misdemeanour'.
The most prevalent summary offences are prosecuted under the Summary Offences Act 1966 (Vic) and include:
Common assault
Aggravated assault
Trespass
Wilful damage
Assault/Resist emergency worker
Summary offences are of course, not confined to the Summary Offences Act, and are to be found in various statutes in force in Victoria.
What is an Indictable Offence?
An indictable offence usually involves a higher degree of criminality, and consequently more severe penalties. Unlike summary offences, an indictable offence can be heard and determined by trial before Judge and jury.
However, as will be discussed below, most indictable charges can be finalised in the Magistrates' Court.
Indictable offences can be classified further as being "serious indictable offences" when the maximum term applicable is 5 years or more (section 325(6) of the Crimes Act 1958 (Vic)), and this distinction is relevant as it relates to accessories to criminal offending.
Certain classifications of indictable offences under the Sentencing Act carry higher maximum penalties.
Under Part 2A of the Sentencing Act 1991 (Vic), certain classes of offenders by reference to the type of indictable offence attract more significant penalties (serious drug offender, serious sexual offender, serious violent offender, serious arson offender).
Previously an 'indictable offence' was referred to as a 'felony'
The old classifications for misdemeanours and felonies were abolished in September 1981 by reason of section 322B of the Crimes Act 1958 (Vic).
The starting point for whether an offence or summary or indictable will be the maximum penalty that applies. Section 112 of the Sentencing Act 1991 (Vic) explains the difference in penalties for summary and indictable offences in these terms:
An offence that is described in a provision of an Act (other than the Crimes Act 1958 or the Wrongs Act 1958), subordinate instrument or local law as being level 1, 2, 3, 4, 5 or 6 or as being punishable by level 1, 2, 3, 4, 5 or 6 imprisonment or fine or both is, unless the contrary intention appears, an indictable offence.
Any other offence under an Act (other than the Crimes Act 1958 or the Wrongs Act 1958), subordinate instrument or local law is, unless the contrary intention appears, a summary offence.
If an offence is described as being punishable in more than one way or in one of two or more ways, subsection (1) applies even if only one of those ways is referred to in that subsection.
This section needs to be read with section 109 of the Sentencing Act 1991 (Vic) as it sets out the applicable maximum term of imprisonment relevant to the level (i.e 1, 2, 3, 4, 5 or 6).
For Commonwealth offences, section 4G of the Crimes Act 1914 (Cth) specifies an indictable offence as being an offence that attracts a maximum of more than 12 months imprisonment, unless the contrary intention appears.
Most Indictable Offences can be finalized in the Magistrates' Court (referred to as being determined summarily).
An accused can elect to have an indictable charge heard by a Magistrate as opposed to a Judge (Part 3.1 of the Criminal Procedure Act 2009 (Vic)).
Schedule 2 of the Sentencing Act 1991 (Vic) contains a list of the indictable offences that may be heard and determined summarily.
An important feature of an indictable offence being heard pursuant to the provisions under the Criminal Procedure Act is that the accused must consent to the Magistrate hearing the offence. In practice, this will be confirmed before an accused enters a plea of guilty or not guilty.
This election is not required when an accused is finalising a summary offence.
Conclusion
If you are facing court for any criminal charge (indictable or summary) can be distressing.
It is important to get advice and prepare as early as possible so as to maximise your chances of either successfully defending the allegation, or mitigating the penalty.
Contact us for advice if you have to attend Court for an Indictable or Summary Offence. Shaun Pascoe, the Director of Pascoe Criminal Law is an Accredited Criminal Law Specialist (Law Institute of Victoria) and has over 18 years of experience as a criminal defence lawyer.
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