Criminal Charges and Offences

Summary charges

In Victoria, a summary offence generally relates to a charge with a maximum penalty of 2 years imprisonment or a fine not exceeding 240 penalty units (s112 of the Sentencing Act 1991).

Summary offences range from disorderly behaviour, certain types of assaults and traffic offences, to wilful property damage. Many of these offences are found in the Summary Offences Act 1966 (Vic) and the Road Safety Act 1986 (Vic).

Summary charges are generally prosecuted in the Magistrates’ Court and are not heard before a judge and jury in higher courts. Exceptions may apply if a case consists of several charges, including indictable offences, in which the charges may be heard together in the County Court or Supreme Court (ss 242 & 243 Criminal Procedure Act 2009) (Vic).

In relation to matters involving a summary offence, it is common for a summons to be issued. If the individual fails to appear at court, a warrant for their arrest is typically issued depending on the severity of the charge. When a person appears in court for a summary offence, they can plead guilty and resolve the matter on the spot. Alternatively, they may choose to adjourn the case to obtain legal representation or gather supporting documents, such as character references, before entering a guilty plea.

If an accused person wishes to plead not guilty, the matter will be scheduled for a contested hearing, and the defendant will need to return to court for a contest mention. During the contest mention, the evidence will be reviewed, and the parties involved will confirm whether they intend to proceed to a full hearing or if there is potential for a resolution.

Indictable charges

Indictable offences are more serious crimes that carry more severe maximum penalties. In Victoria, indictable offences generally carry a maximum penalty of level 6 to level 1 imprisonment (i.e. a maximum of 5 years to life imprisonment) or a fine or both (s112 of the Sentencing Act 1991).

Indictable offences range from causing injury, theft and drug offences to sexual offences, armed robbery, murder and treason. While several Commonwealth and Victorian legislative instruments create criminal offences, most commonly charged indictable crimes are specified in the Crimes Act 1958 (Vic).

A person charged with an indictable offence has the right to a hearing before a jury in a higher court, such as the County Court or Supreme Court of Victoria. Many indictable offences, however, can be heard in the Magistrates Court in the same way as summary offences (i.e. indictable offences triable summarily) under section 28 of the CPA.

Commonwealth charges

Charges under the Commonwealth jurisdiction are distinct from state-based offences, which generally only apply to criminal conduct within the legislating state, and enable the prosecution of conduct occurring across state boundaries and overseas. Common charges include drug trafficking, or drug importation, online sex offending and tax or Centrelink fraud.

Commonwealth (or federal) laws extend to all States and Territories in Australia. Two critical pieces of federal legislation dealing with criminal law are the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth).

Commonwealth charges are prosecuted in the higher courts and usually involve more extensive and complex criminal activity.

Where are Commonwealth charges tried?

Criminal charges for offences against the laws of the Commonwealth are generally heard in the relevant State courts where the offending conduct occurred. In general, the State and Territory Courts exercise conferred federal jurisdiction to hear and determine these matters.

Under the Judiciary Act 1903 (Cth), the State and Territory courts that have jurisdiction with respect to summary offences, committal proceedings and trials on indictment for state-based offences are vested with ‘like jurisdiction’ for charges with offences against Commonwealth laws (s 68(2)).

What procedure and rules of evidence apply to commonwealth charges?

Generally, the applicable laws relating to evidence, arrest, bail, custody, appeals and criminal procedure in respect of a Commonwealth charge are the relevant State or Territory laws, respectively. While some aspects of criminal procedure regulating Commonwealth matters are contained in the Crimes Act 1914 (Cth), generally, the relevant State or Territory laws are adopted (ss 68(1) & 79 of the Judiciary Act 1903 (Cth)).

Despite the general application of the State or Territory laws, various laws of the Commonwealth do provide specific procedures in certain instances, such as:

• The requirement for a trial upon indictment to be a trial by jury. That is, there can be no trial for a Commonwealth indictable offence by a judge alone (s80 of the Commonwealth Constitution).
• Some provisions in the Crimes Act 1914 (Cth) deal with summary proceedings and indictable offences triable summarily (e.g. s 4J and 4JA). Where the discretion exists, these provisions assign the discretion to the prosecutor, not the Magistrate, regarding the question of whether a charge will proceed through the summary stream or indictable stream.
• The significant Commonwealth sentencing framework under part 1B of the Crimes Act 1914 (Cth), which a Court is required to apply when sentencing a federal offence. For example, when sentencing for a federal offence a court must have regard to subjective factors and the objective seriousness of the offence as set out in s 16A(2) and not the mitigating or aggravating features in State sentencing legislation.
• Under the Evidence Act 1995 (Cth), certain provisions concerning Commonwealth documents, records and proof of certain matters will also apply in any State or Territory Court.

What to do if you are facing criminal charges

If you have been charged with a criminal offence, you could face severe punishment, including fines or imprisonment if found guilty. Seek legal advice early to ensure you can achieve the best possible outcome.

Our criminal lawyers are here to fight for your rights, protect your interests, and provide exceptional legal representation tailored to your specific circumstances.

We understand the complexities of the criminal justice system and are experienced with all criminal law matters.

Please contact us today to schedule a consultation for legal advice with a criminal lawyer, and let us help you navigate through this challenging time.