Criminal Law

Going to Court

When a criminal offence has been committed by a person, a charge-sheet will be issued to the accused.

Court Representation Lawyers Essendon and Melbourne CBD

When a criminal offence has been committed by a person, a charge-sheet will be issued to the accused. The charge sheet will confirm whether the offence committed is a summary offence, an indictable offence, or an indictable offence that may be heard summarily. The category of the offence will determine how the case will proceed through the Courts.

Mendis & Gibson Lawyers

What do I do if I have been charged with a summary offence?

It is crucial to seek legal advice as soon as practicable when you have been charged with an offence.

The charge sheet provided to you will confirm if your offence is a summary offence, as if this is the case, then your case will go through the summary stream in the Magistrates’ Court.

Your first Court appearance will be a mention, which is a hearing where the Magistrate will ask you how you intend to proceed with the case i.e. with a plea of guilty or a plea of not guilty.

Mendis & Gibson Lawyers

What will happen if I plead guilty?

If you decide to enter a plea of guilty, it is advisable you do this in the early stages as the Court may then impose a more lenient sentence. This means the Court may award you a sentencing ‘discount’, as opposed to a harsher penalty you may receive if you plead not guilty.

As such, if are pleading guilty to your offence and you told the Magistrate this in the mention, you will then enter into a plea hearing. It is strongly advised to have a legal representative present your plea to the Court as they will be familiar with the rules, requirements, and etiquette in front of the Magistrate.

A plea hearing will be structured as follows:
  1. The Prosecutor will read a summary of facts to the Court, and the Magistrate will ask if you agree with the facts.
  2. The Prosecutor will then state any prior criminal offences (if applicable) and hand the records to the Magistrate.
  3. You will then have your opportunity to speak to the Magistrate and explain the circumstances of your offending. You may explain any corrective action you have taken, what you have learned from your offending, your personal circumstances, how a penalty will impact you, and how a conviction will affect you.
  4. You will then have the opportunity to hand in any character references, medical reports or apology letters to the Magistrate to support your case.
  5. The Magistrate will consider all the information put to them and make any sentencing orders.

Mendis & Gibson Lawyers

What will happen if I plead not guilty to a summary offence?

It is strongly advised to have a legal representative act on your behalf as they will be familiar with the rules, requirements, and etiquette in front of the Magistrate.

If you plead not guilty in your first court appearance – the mention – then your case may be directed to a contest mention. A contest mention is a Court date where any issues in dispute, details of the contested hearing and any other practical issues are discussed. You may have an opportunity to charge your plea if the prosecution shows they have a strong case against you, and occasionally, some charges may be dropped in a contest mention if the prosecution agrees to such.

However, if the case still cannot be resolved in the contest mention, then you will proceed to a contested hearing.

The contested hearing will have you and the prosecution present your submissions, present witness evidence, dispute of any evidence relied on, and present character references and supporting information. This will all help you in proving your case to the Magistrate. The Magistrate will then decide if you are guilty or not guilty based on the information put before them.
If the Magistrate decides you are guilty, they will then impose sentencing.

Mendis & Gibson Lawyers

What happens if I have been charged with an indictable offence?

Indictable offences are treated differently than summary offences as they are of a more serious nature. Indictable offences are dealt with in the indictable stream and may result in severe penalties and/or imprisonment. The process for indictable offences in the Court is similar to summary offending, with a few changes.

Similar to summary offences, persons who have been arrested for an indictable offence may be released on bail by the police. If this is not the case, a bail application may be made before the Court and the normal bail procedures will follow.

Regardless of whether you are granted bail or not, your first Court date will be a filing hearing. This is a hearing where the Magistrate will set a timetable for the case.

You will then receive a committal mention date, which is a hearing where the Magistrate may:
On this committal mention date, you will also propose to either enter a plea before a higher Court or go to a full committal hearing.

Full committal hearings are hearings where evidence is presented before a Magistrate in the Magistrates’ Court. This will be the last hearing before it goes to the County Court or Supreme Court. The Magistrate will hear all evidence and decide whether a properly instructed jury would convict the accused person. Essentially, the Magistrate will decide whether the case will continue and be heard in a higher Court before a jury.

If your case proceeds further, you will go to trial in the County Court or Supreme Court and your case will be heard in front of a jury. If you are convicted in this hearing, you will then be directed to a plea hearing and normal plea hearing procedures will apply.

Mendis & Gibson Lawyers

What kind of sentencing could the Court order?

The main purposes of sentencing as under the Sentencing Act 1991 are for punishment, deterrence, rehabilitation, and protection of the community.

There are several options available to the Court when imposing a sentence for an offence. These options include:

Mendis & Gibson Lawyers

Can I appeal the decision if I am found guilty?

You may appeal a decision to a higher court if you dispute a guilty verdict or you dispute the penalty imposed on you. A Notice of Appeal will need to be filed with the Magistrates’ Court within 28 days of the sentence to appeal the decision.

It is crucial to be aware that higher courts will apply their own sentencing discretion, and this means you may be subjected to an increase in sentence.