Summary conviction penalty, meaning and effect of
5 Summary conviction penalty, meaning and effect of
This section applies if —
a provision of this Code, or another written law, provides a summary conviction penalty for an indictable offence; and
a person (the accused) is charged before a court of summary jurisdiction (the court) with committing the indictable offence in circumstances where the summary conviction penalty applies to the offence (the charge).
Despite section 3(2), the court is to try the charge summarily unless —
on an application made by the prosecutor or the accused before the accused pleads to the charge, the court decides under subsection (3) that the charge is to be tried on indictment; or
this Code or another written law expressly provides to the contrary.
The court may decide the charge is to be tried on indictment if and only if it considers —
that the circumstances in which the offence was allegedly committed are so serious that, if the accused were convicted of the offence, the court would not be able to adequately punish the accused; or
that the circumstances in which the offence was allegedly committed are such that, if the accused were convicted of the offence, the Sentencing Act 1995 Part 2 Division 2A would apply to the sentencing of the accused for that offence; or
that the charge forms part of a course of conduct during which other offences were allegedly committed by the accused and the accused is to be tried on indictment for one or more of those other offences; or
that a co‑accused of the accused is to be tried on indictment; or
that the charge forms part of a course of conduct during which other offences were allegedly committed by the accused and others and the accused or one of the others is to be tried on indictment for one or more of those other offences; or
that the interests of justice require that the charge be dealt with on indictment.
For the purposes of making a decision under subsection (3) the court —
may require the prosecutor to provide any information the court needs and may hear submissions from both the prosecutor and the accused; and
may adjourn the proceedings.
If under subsection (3) the court decides that the charge is to be tried on indictment the court shall —
give reasons for the decision; and
deal with the accused in accordance with section 41 of the Criminal Procedure Act 2004.
A decision cannot be made under subsection (3) after the accused has pleaded to the charge.
A decision made under subsection (3) is final and cannot be appealed.
If the court convicts the accused of the offence charged (whether after a plea of guilty or otherwise), the accused is liable to the summary conviction penalty provided for the offence, unless the court commits the accused for sentence.
If the court —
convicts the accused of the offence charged after a plea of guilty or otherwise; and
considers that any sentence the court could impose on the accused for the offence would not be commensurate with the seriousness of the offence,
the court may commit the accused to a court of competent jurisdiction for sentence.
An accused who is committed for sentence under subsection (9) is liable to the penalty with which the offence is punishable on indictment.
For the purposes of this section and of any summary trial of the charge, the court must be constituted by a magistrate alone.
[Section 5 inserted: No. 4 of 2004 s. 29; amended: No. 59 of 2004 s. 80; No. 84 of 2004 s. 28 and 82; No. 49 of 2012 s. 173(2).]
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