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Simple Offences, Crimes and Either Way Offences (WA)

In Western Australia, how a criminal offence is described in the legislation affects whether it is finalised on indictment in the District Court or Supreme Court or as a summary offence in the Magistrates Court. In Western Australia, there are three types of offences: simple offences, crimes and either way offences.

What Is A Simple Offence?

A simple offence in Western Australia is a criminal act that is referred to in the Criminal Code 1913 (the Code) as an ‘offence.’

The Magistrates Court in Western Australia is a court of summary jurisdiction and deals with all types of ‘simple offences.’ Simple offences are minor offences that cannot be dealt with in the higher courts. For example, under section 313 of the Criminal Code, common assault is a simple offence. A person found guilty is liable to imprisonment for up to 18 months and to a fine of up to $18,000 or if it is an aggravated offence, to three years imprisonment and a fine of up to $36,000.

Other examples of simple offences are possession or use of a prohibited drug, driving under the influence of alcohol and driving without a valid licence.

What Is A Crime?

Any criminal act referred to as a ‘crime’ in the Code or other legislation as an indictable offence. In Western Australia, indictable offences are finalised in the District or Supreme Court. The matter will commence in the Magistrates Court and then after committal proceedings, be transferred to a higher court.

Examples of a crime include sexual penetration without consent, deprivation of liberty and grievous bodily harm.

Limitation Period

A person must be prosecuted for a simple offence within 12 months of the date of the alleged offence (unless otherwise prescribed). An exception to this rule is a common assault. The Code specifically states that a prosecution for common assault may be commenced at any time.

A person can be prosecuted with an indictable offence regardless of how much time has elapsed since the offence allegedly occurred. This most commonly occurs in cases of historical sex abuse.

What Is An ‘Either Way’ Offence?

An ‘either way’ offence is an offence described in legislation as a crime and for which the legislation sets out two different maximum penalties – one that applies where the matter is dealt with in the summary jurisdiction and another that applies where it is dealt with on indictment.

For example, a person who commits an assault causing bodily harm is guilty of a crime and is liable to a maximum of five years imprisonment when dealt with on indictment (or seven where the offence is aggravated). However, if the matter is dealt with summarily the person only faces a maximum of two years imprisonment and a fine of up to $24,000 (or three years and $36,000 for an aggravated offence).

Other examples of either way offences include:

  • Fraud;
  • Possessing stolen or unlawful property;
  • Being armed in a way that causes fear;
  • Indecent assault; and
  • Obscene act in public.

‘Either way’ offences are dealt with summarily unless the prosecution or defence applies under section 5(2) of the Criminal Code for the charge to be finalised on indictment. An application that an ‘either way’ offence be dealt with on indictment may be made because:

  • The seriousness of the offence means that a magistrate would be unable to adequately punish the defendant;
  • Division 2A of the Sentencing Act 1995 applies;
  • One or more co-accused is to be tried on indictment;
  • The charge forms part of a course of conduct of the accused where other charges have been preferred and one or more of those other charges are to be dealt with on indictment; or
  • It is in the interests of justice for the matter to be dealt with on indictment.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Armstrong Legal.

Courtney Ashton - Associate - Perth

This article was written by Courtney Ashton - Associate - Perth

Courtney holds a Bachelor of Laws and a Bachelor of Criminology and Justice from Edith Cowan University and a Graduate Diploma of Legal Practice from the College of Law. Courtney is a dedicated practitioner who enjoys a challenge and has competently completed many traffic and summary jurisdiction matters. Courtney enjoys advocacy and has appeared in a number of drink driving,...

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