CRIMES ACT 1900 - SECT 374 Summary disposal of certain cases at prosecutor's election

CRIMES ACT 1900 - SECT 374

    (1)     This section applies if a person (the defendant ) is before the Magistrates Court charged with—

        (a)     an offence punishable by imprisonment for longer than 2 years but not longer than 5 years; or

        (b)     an offence against the Work Health and Safety Act 2011

, section 31 (1).

    (2)     For subsection (1) (a), the penalty of imprisonment for an offence charged as an aggravated offence because it involves family violence is the penalty for the simple offence.

    (3)     The prosecutor must elect whether to have the case disposed of summarily.

    (4)     The defendant must not be required to plead guilty or not guilty to the charge if the prosecutor has not made an election under subsection (3).

    (5)     The prosecutor must make the election before the later of—

        (a)     the 2nd time the proceeding for the offence is before the court; and

        (b)     21 days after the 1st time the proceeding for the offence is before the court.

    (6)     If the prosecutor does not elect to have the case disposed of summarily within the time required under subsection (5), the court must deal with the charge in accordance with—

        (a)     section 375 (5) to (13); or

        (b)     if the matter is being heard in the Childrens Court— section 375AA (4) to (12).

    (7)     If the prosecutor elects to have the case disposed of summarily, the court must hear and determine the charge summarily and sentence or otherwise deal with the defendant according to law.

    (8)     In sentencing or otherwise dealing with a defendant in relation to an offence that is an aggravated offence because it involves family violence, the court must treat the family violence as an aggravating factor for the offence, subject to the limitation on the penalty under subsection (9).

Example

A defendant is charged with aggravated assault occasioning actual bodily harm under s 24 because the offence involves family violence. The prosecutor makes an election to have the case disposed of summarily, based on the maximum penalty of 5 years imprisonment for the simple offence. The court convicts the defendant and must impose a sentence or otherwise deal with the defendant in a way that, subject to the limitation on penalty in s (9), acknowledges the objective seriousness of family violence.

    (9)     If the court disposes of a case summarily under this section and convicts the defendant of the offence, the court must not impose a penalty that exceeds—

        (a)     a fine of $5 000, imprisonment for 2 years or both; or

        (b)     if the maximum penalty provided for the offence by the law creating it is a fine of less than $5 000—the maximum penalty.

    (10)     In this section:

"Magistrates Court" includes the Childrens Court.