Australian Institute of Criminology

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Chapter 5: Criminal courts

There is a hierarchy of criminal courts at the federal and state/territory levels. The state and territory court systems comprise:

  • Magistrates’ courts—lower courts that deal with relatively minor or summary criminal offences. Under some circumstances, these courts may also deal with less serious indictable offences. They are also responsible for conducting preliminary (committal) hearings for indictable offences.
  • Intermediate (district/county) courts—courts that deal with crimes of greater seriousness. Intermediate courts hear the majority of cases involving indictable crimes.
  • Supreme courts—the highest level of court within a state or territory. Supreme Courts deal with the most serious crimes.

Higher courts comprise intermediate and Supreme Courts, where defendants charged with serious or indictable offences are dealt with and where appeals are heard. Magistrates’ courts are called lower courts.

Each state and territory also has a children’s court, which sits within the Magistrates’ court system. Children’s courts deal solely with defendants who committed an offence when aged under 18 years (or under 17 years in Queensland).

Minor criminal offences, called summary offences, are dealt with in the lower courts where penalties are less severe; major offences, dealt with by the higher courts, are called indictable offences. If a defendant pleads not guilty, indictable offences normally require a trial by judge and jury.

All state, territory and federal courts handle a number of matters that appear in the court system for the first time, although almost all criminal charges, including those for federal criminal offences, are lodged initially with a Magistrates’ court.

In states with both supreme and intermediate courts, the majority of charges are decided in intermediate courts. Tasmania, the Northern Territory and the Australian Capital Territory do not have intermediate courts; all relevant charges are dealt with by Supreme Courts.

The ABS publishes statistics on criminal defendants whose cases were initiated or finalised in higher and Magistrates’ courts and recently, in children’s courts. ABS data do not include defendants finalised in electronic courts, family violence courts, Koori courts or drug courts.

In addition, in recent years, the Steering Committee for the Review of Government Service Provision (SCRGSP) has produced statistics on the number of lodgements at each court level.

Both the ABS and the SCRGSP report on criminal court data for financial rather than calendar years.

Source: References 21 and 22

The criminal court process

Case flows

Cases passing through the courts generally share the following common elements:

  • lodgement—the initiation of the matter with the court;
  • pre-trial procedures—committal hearing or discussion and mediation between the parties;
  • trial; and
  • court decision—judgment or verdict followed by sentencing.

Source: References 21 and 22

Lodgements

Most lodgements are processed by the Magistrates’ court in the relevant criminal jurisdiction.

In 2010–11, 802,009 cases were lodged in criminal courts in Australia; 96 percent were initiated in Magistrates’ courts, three percent were initiated in district/county courts and the remaining one percent initiated in the Supreme Courts.

Source: Reference 21

Timeliness

The duration between the lodgement of a matter with the court and its finalisation is referred to as timeliness. Generally, lower courts complete a similar proportion of their workload with greater timeliness than higher courts, because cases are of a more straightforward nature, the disputes and prosecutions heard are usually less complex and there is a greater proportion of guilty pleas.

Committal is the first stage of hearing an indictable offence in the criminal justice system. A Magistrate assesses the sufficiency of evidence presented against the defendant and decides whether to commit the matter for trial in a higher court. Defendants are held in custody pending a committal hearing or trial, or released on bail. The conduct of the committal hearing is important for timely adjudication of the charges against the defendant.

Figure 75 Timeliness of matters finalised in Magistrates’ court by method of finalisation, 2010–11 (%)

Timeliness of matters finalised in Magistrates’ court by method of finalisation, 2010–11 (%)

a: Includes guilty plea and guilty verdict

  • The majority of matters in the Magistrates’ courts in 2010–11 were finalised in less than 13 weeks. This varied depending on the method of finalisation. For example, 77 percent of matters proven guilty took less than 13 weeks to finalise, compared with 35 percent of those resulting in acquittal and 76 percent of matters overall.
  • In 2010–11, only three percent of all defendants were involved in matters that took greater than 52 weeks to finalise. However, this proportion was nine percentage points higher for matters ending in acquittal. Specifically, 12 percent of defendants whose matters ended with acquittal took longer than 52 weeks to finalise.
  • Overall, 14 percent of defendants were finalised within 13 to 26 weeks, followed by five percent that were finalised between 26 and 39 weeks.

Source: Reference 22

Figure 76 Timeliness of matters finalised in higher courts by method of finalisation, 2010–11 (%)

Timeliness of matters finalised in higher courts by method of finalisation, 2010–11 (%)

a: All defendants includes cases where finalisation method was unknown or defendants whose cases were finalised by other means (eg transferred to other court methods, withdrawn by prosecution)

  • Overall, in 2010–11, the greatest proportion of defendants before the higher courts were finalised between 13 and 26 weeks (29%).
  • However, a large proportion of all defendants’ matters took longer than 52 weeks to finalise. In 2010–11, 23 percent of all defendants were finalised in a time period of greater than 52 weeks.
  • With regards to specific methods of finalisation, half of all defendants whose matter resulted in a guilty finding took greater than 52 weeks to finalise. Similarly, a large proportion of matters ending in acquittal took longer than 52 weeks to finalise (40%).
  • For defendants who entered a guilty plea, only 18 percent took greater than 52 weeks to finalise. Instead, 31 percent were finalised between 13 and 26 weeks and 21 percent between 26 and 39 weeks.
  • A greater proportion of defendants who entered a guilty plea were finalised in less than 13 weeks than any other method of finalisation. Specifically, 19 percent of defendants with a guilty plea were finalised in this time period, compared with four percent of those who were acquitted and two percent who were found guilty. In 2010–11, 16 percent of all defendants before the higher courts were finalised in less than 13 weeks.

Source: Reference 22

Figure 77 Timeliness of matters finalised in the children’s courts by method of finalisation, 2010–11 (%)

Timeliness of matters finalised in the children’s courts by method of finalisation, 2010–11 (%)

a: Includes guilty plea and guilty verdict

  • The majority (62%) of defendants in the children’s courts were finalised in less than 13 weeks. This trend was driven mainly by the 64 percent of defendants who were proven guilty in 2010–11.
  • A greater proportion of defendants with matters before the children’s courts who were ultimately acquitted took between 13 and 26 weeks, compared with less than 13 weeks. Specifically, 36 percent of acquittals were finalised between 13 and 26 weeks, while only 26 percent were finalised in less than 13 weeks.
  • In 2010–11, 12 percent of acquittals and three percent of defendants proven guilty in the children’s courts took greater than 52 weeks. Overall, only three percent of all defendants took greater than 52 weeks to finalise.

Source: Reference 22

Court decisions

Cases are finalised in the courts in the following ways:

  • adjudicated—determined whether guilty of the charges by court judgement or plea of guilty; and
  • non-adjudicated—unresolved for a variety of reasons including withdrawal by prosecution, unfitness to plead, death of the accused, diplomatic immunity and statute of limitations.

Figure 78 Criminal cases finalised in Magistrates’ court by method of finalisationa, 2010–11 (%)

Criminal cases finalised in Magistrates’ court by method of finalisation

a: New South Wales refers to finalised appearances rather than defendants, resulting in possible over-counting. New South Wales excludes defendants finalised by committal to a higher court

b: Includes guilty plea and guilty verdict

Note: n=533,857

  • The majority of criminal cases finalised in the Magistrates’ court in 2010–11 ended with a proven guilty finding (87%). While seven percent were withdrawn by the prosecution, only three percent were acquitted or transferred to other court levels, respectively.

Source: Reference 22

Figure 79 Criminal cases finalised in higher courts by method of finalisation, 2010–11 (%)

Criminal cases finalised in higher courts by method of finalisation, 2010–11 (%)

a: Includes guilty plea and guilty verdict

Note: n=16,295

  • While 78 percent of criminal cases finalised in the higher courts resulted in a proven guilty finding, 14 percent were withdrawn by the prosecution in 2010–11. Seven percent were acquitted and one percent were transferred to other court levels.

Source: Reference 22

Figure 80 Criminal cases finalised in children’s courts by method of finalisation, 2010–11

Criminal cases finalised in children’s courts by method of finalisation, 2010–11

a: Includes guilty plea and guilty verdict

b: Includes defendants unfit to plead, defendants deceased and other non–adjudicated finalisations

Note: n=36,236

  • In 2010–11, 79 percent of defendants in the children’s courts were proven guilty, while four percent were acquitted.
  • Only nine percent of matters were withdrawn by prosecution, while three percent were transferred to other court levels.

Source: Reference 22

Figure 81 Adjudicated defendants in Magistrates’ court by age and sex, 2010–11 (rate per 100,000 relevant persons)

Adjudicated defendants in Magistrates’ court by age and sex, 2010–11 (rate per 100,000 relevant persons)

  • Males aged 20–24 years were the group most commonly adjudicated in the Magistrates’ court in 2010–11. Females aged 20–24 years were adjudicated at a rate of 2,528 per 100,000 females compared with 9,294 per 100,000 males.
  • The rate of male adjudication in the Magistrates’ court declined by 84 percent between the ages of 20–24 and 45 years and over. In 2010–11, males aged 45 years and over were adjudicated at a rate of 1,504 per 100,000 population.
  • The rate of adjudication in the Magistrates’ court was lowest for both sexes for defendants aged under 20 years. Females were adjudicated at a rate of 307 per 100,000 and males were adjudicated at a rate of 1,196 per 100,000 population.

Source: References 2 and 22

Figure 82 Adjudicated defendants in higher courts by age and sex, 2010–11

Adjudicated defendants in higher courts by age and sex, 2010–11

  • Although adjudication of male defendants in the higher courts is significantly greater than that of female defendants, both sexes follow similar patterns across the age groups. The rate of adjudication peaks in the 20–24 year age group before declining over the subsequent age groups.
  • For defendants aged under 20 years, males were adjudicated at a rate of 36 per 100,000 population and females at a rate of three per 100,000.
  • The rate of female adjudication was lower for those aged 25–34 years than for those aged 20–24 years. For those aged 20–24 years, the rate was 35 per 100,000 population, compared with 32 per 100,000 females aged 25–34 years.
  • Similarly, for males, the rate of adjudication was greater for those aged 20–24 years compared with 25–34 years (316 compared with 225 per 100,000 population). The adjudication rate was lower still for those aged 35–44 years at 162 per 100,000 population.

Source: References 2 and 22

Sentencing

Sentencing options available at each court level include, but are not limited to:

  • fine;
  • good behaviour bond;
  • probation order;
  • suspended sentence;
  • community service order;
  • community custody (including home detention and periodic detention); and
  • imprisonment.

A custodial order restricts an offender’s liberty and may be served in a correctional facility or under supervision in the community. Suspended sentences are also classified as a form of custodial order.

Non-custodial orders are sentences that do not involve being held in custody. They may include supervision by a probation officer, community service orders or monetary penalties.

Sentencing data for adult offenders have been available since 2002–03 from all states and territories. The ABS is continuing to work towards a more detailed and regular sentencing collection for higher courts, Magistrates’ courts and children’s courts.

Figure 83 Principal sentence of defendants found guilty in Magistrates’ courts by age in years, 2010–11 (n)

Principal sentence of defendants found guilty in Magistrates’ courts by age in years, 2010–11 (n)

a: Includes custody in a correctional institution, custody in the community and suspended sentence

b: Includes community supervision or work orders, monetary orders and other non-custodial orders

  • Non-custodial orders were the most common sentence handed down in the Magistrates’ courts in 2010–11. In total, 407,566 non-custodial orders were handed down in 2010–11, constituting 91 percent of all sentences in Magistrates’ courts.
  • Defendants aged 25–34 years received the greatest number of sentences in 2010–11. Specifically, 37 percent of non-custodial and 30 percent of custodial sentences were handed down to defendants aged 25–34 years.
  • Defendants under 20 years of age were the least likely to receive a custodial sentence in 2010–11. Only five percent of defendants aged under 20 years received a custodial sentence compared with 12 percent of defendants aged 20–24 years and 11 percent aged 25–43 years.

Source: Reference 22

Figure 84 Defendants found guilty in higher courts by age and principal sentence, 2010–11 (n)

Defendants found guilty in higher courts by age and principal sentence, 2010–11 (n)

a: Includes custody in a correctional institution, custody in the community and suspended sentence

b: Includes community supervision or work orders, monetary orders and other non-custodial orders

  • Defendants found guilty in a higher court in 2010–11 were more commonly awarded a custodial than a non-custodial sentence. Of the 12,753 sentences handed down in the higher courts in 2010–11, 10,946 (86%) were custodial.
  • In 2010–11, the greatest proportion of custodial sentences were handed down to defendants aged 25–34 years (31%). Conversely, defendants aged 20–24 years received the largest proportion of non-custodial orders of any other age group (27%).

Source: Reference 22

Figure 85 Principal sentence of adult male defendants found guilty in any courta, 2010–11 (%)

Principal sentence of adult male defendants found guilty in any court, 2010–11 (%)

a: Includes Magistrates’ and higher courts

b: Includes intensive corrections orders, home detention and other orders restricting liberty, although allowing living in the community

Note: n=368,120 (excludes male defendants whose type of custodial order handed down was unknown)

  • Sixty-eight percent of males found guilty in any court in 2010–11 received a monetary order. Fifteen percent received other non-custodial orders, while five percent were sentenced to community supervision/work orders.
  • Twelve percent of male defendants received a custodial sentence in 2010–11. Specifically, seven percent were sentenced to custody in a correction institution, four percent received a fully suspended sentence and one percent served custody in the community.

Source: Reference 22

Figure 86 Principal sentence of adult female defendants found guilty in any courta, 2010–11 (%)

Principal sentence of adult female defendants found guilty in any court, 2010–11 (%)

a: Includes Magistrates’ and higher courts

b: Includes intensive corrections orders, home detention and other orders restricting liberty, although living in the community

Note: n=103,888

  • Of the 103,888 female defendants sentenced in Australian courts in 2010–11, 69 percent received a monetary order, followed by 20 percent who received other non-custodial orders.
  • Three percent of female defendants were sentenced to custody in a correctional facility and three percent received a fully suspended sentence.

Source: Reference 22

Figure 87 Principal sentence of defendants found guilty in a children’s court, 2010–11 (%)

Principal sentence of defendants found guilty in a children’s court, 2010–11 (%)

Note: n=28,476

  • Other non-custodial orders and community supervision or work orders were the most common sentences handed down in the children’s court in 2010–11. Specifically, 28 percent of defendants received a community supervision or work order, while 16 percent received a monetary order.
  • In 2010–11, only six percent of defendants in the children’s courts were sentenced to custody in a correctional institution.

Source: Reference 22

Figure 88 Principal sentence of adult defendants found guilty in Magistrates’ courts by most serious offence, 2010–11

Principal sentence of adult defendants found guilty in Magistrates’ courts by most serious offence, 2010–11

Note: JSO=offences against justice procedures, government security, or government operations. DNA=dangerous or negligent acts endangering persons

  • Greater proportions of custodial orders were handed down in the Magistrates’ courts for UEWI and sexual assault. In 2010–11, 61 percent of defendants found guilty of UEWI received a custodial sentence, while the same was true for 53 percent of defendants found guilty of sexual assault.
  • Monetary orders were the most common sentence awarded to defendants found guilty of traffic-related crimes (85%) or dangerous or negligent acts endangering persons (80%).
  • For defendants charged with AICI in 2010–11, 30 percent received a custodial order, 35 percent received a monetary order and a further 35 percent received another type of non-custodial order.

Source: Reference 22

Figure 89 Principal sentence of defendants found guilty in higher courts by most serious offence, 2010–11

Principal sentence of defendants found guilty in higher courts by most serious offence, 2010–11

  • Custodial orders were the most common sentence handed down in the higher courts in 2010–11. Only one percent of defendants found guilty of homicide received a non-custodial sentence.
  • Similarly, high proportions of defendants received custodial sentences for robbery (91%), sexual assault (89%) and deception offences (88%).
  • For defendants found guilty of theft in the higher courts, 68 percent received a custodial order, seven percent a monetary order and 25 percent another type of non-custodial order.

Source: Reference 22

Figure 90 Principal sentence of defendants found guilty in a children’s court by most serious offence, 2010–11 (%)

Principal sentence of defendants found guilty in a children’s court by most serious offence, 2010–11 (%)

  • Compared with non-custodial orders, custodial sentences were very rare in the children’s courts in 2010–11. The proportion of defendants who received a custodial order in the children’s courts ranged from 31 percent of those found guilty of robbery, to one percent of those found guilty of either a public order offence or a traffic-related offence.
  • Defendants found guilty of a traffic-related offence were most likely to receive a monetary order in 2010–11 (52%).
  • Eighty-three percent of defendants found guilty of property damage/environmental pollution in 2010–11 received an other non-custodial sentence, followed by 13 percent who received a monetary order.

Source: Reference 22

Federal courts

In Australia, most crimes are committed against state and territory laws. Federal law deals with crimes that have a national or international focus; for example, tax crimes, transnational and cybercrime, terrorism or child sexual offences committed overseas.

There is not one specific court that prosecutes federal defendants. The Australian Government through the Crimes Act 1914 invests the Supreme, district (county), Magistrates’ and children’s courts with federal jurisdiction, allowing them to pass judgement in these matters. Federal prisoners are held in state prisons.

In 2009, the ABS released the first edition of Federal Defendants: Selected States and Territories, which provides a snapshot of crimes committed in Australia that were tried under federal law.

In 2010–11, a total of 10,828 federal cases were lodged in Australian courts; 92 percent were initiated in the Magistrates’ Court, seven percent in the higher courts and one percent in the children’s courts.

Source: Reference 23

Figure 91 Federal criminal cases finalised in higher courts by method of finalisation, 2010–11 (%)

Federal criminal cases finalised in higher courts by method of finalisation, 2010–11 (%)

Note: n=758

  • In 2010–11, the majority of federal defendants (88%) were proven guilty in the higher courts.
  • Only four percent of federal defendants were acquitted in 2010–11, while eight percent of matters were withdrawn by the prosecution.

Source: Reference 23

Figure 92 Federal criminal cases finalised in the Magistrates’ and children’s courts by method of finalisation, 2010–11 (%)

Federal criminal cases finalised in the Magistrates’ and children’s courts by method of finalisation, 2010–11 (%)

a: Includes transfers to other courts, defendants deceased, unfit to plead, transfers to non-court agencies and other non-adjudicated finalisations not elsewhere classified

Note: n=10,071

In 2010–11, 19 percent of federal criminal cases in the Magistrates’ and children’s courts were withdrawn by the prosecution. Despite this, 70 percent of federal criminal defendants were found guilty and three percent were acquitted.

Source: Reference 23

Figure 93 Federal defendants in higher courts by age and sex, 2010–11 (n)

Federal defendants in higher courts by age and sex, 2010–11 (n)

  • There were no female federal defendants aged under 20 years in the higher courts in 2010–11. Further, there were only 19 male federal defendants under the age of 20 years.
  • The greatest number of federal defendants in the higher courts were aged 45 years and over. In 2010–11, there were 281 federal defendants aged 45 years and over, of which 19 percent were female.
  • There were similar numbers of male federal defendants aged 25–34 years (n=157) and 35–44 years (n=155) in the higher courts in 2010–11.

Source: Reference 23

Figure 94 Federal defendants in the Magistrates’ court by age and sex, 2010–11 (n)

Federal defendants in the Magistrates’ court by age and sex, 2010–11 (n)

  • In 2010–11, there were 2,548 female federal defendants in the Magistrates’ court. Thirty-two percent of these were aged 25–34 years, while 31 percent were aged 35–44 years.
  • By comparison, of the 6,194 male federal defendants, 30 percent were aged 45 years and over and 28 percent were 25–34 years. A further 28 percent were aged 35–44 years.

Source: Reference 23

Figure 95 Federal defendants in the children’s court by age and sex, 2010–11 (n)

Federal defendants in the children’s court by age and sex, 2010–11 (n)

  • Very small numbers of federal defendants were prosecuted in the children’s courts in 2010–11. Approximately 40 percent of federal defendants in the children’s court were charged with either harassment and private nuisance or threatening behaviour.
  • The greatest number of male federal defendants in the children’s court were 17 years of age (n=32). By comparison, the largest number of female federal defendants were aged 15 years (n=13).

Source: Reference 23

Figure 96 Selected federal offences in the higher courts by method of finalisation, 2010–11 (%)

Selected federal offences in the higher courts by method of finalisation, 2010–11 (%)

a: Includes transfers to other courts, defendants deceased, unfit to plead, transfers to non-court agencies and other non-adjudicated finalisations not elsewhere classified

Note: WBP=withdrawn by prosecution. CSO=Commonwealth sexual offences. MPS=migration and people smuggling offences

  • Very few federal defendants were acquitted in the higher courts in 2010–11. The greatest proportion was for migration and people smuggling (MPS) offences (5%).
  • For defendants charged with federal fraud offences, 96 percent were proven guilty, while two percent of cases were withdrawn by the prosecution.
  • The proportion of federal cases that were withdrawn by the prosecution varied between crimes. For instance, the proportions ranged from 13 percent of drug offences to two percent of fraud offences.

Source: Reference 23

Figure 97 Selected federal offences in the Magistrates’ and children’s courts by method of finalisation, 2010–11 (%)

Selected federal offences in the Magistrates’ and children’s courts by method of finalisation, 2010–11 (%)

a: Includes transfers to other courts, defendants deceased, unfit to plead, transfers to non-court agencies and other non-adjudicated finalisations not elsewhere classified

Note: WBP=withdrawn by prosecution. CPO=Commonwealth property offences. CSO=Commonwealth sexual offences. MPS=migration and people smuggling

  • The way federal offences were finalised in the Magistrates’ and children’s courts differed between offences. For example, a proven guilty finding was more common for fraud (82%), financial (68%), Commonwealth property offences (59%) and communications offences (54%).
  • Seventy-four percent of Commonwealth sexual offences (CSO) and 64 percent of MPS offences were finalised through other means. This was the case for only two percent of fraud offences.
  • For federal defendants charged with drug offences, 44 percent were finalised through other means, 31 percent were withdrawn by prosecution and 23 percent were proven guilty. Only two percent were acquitted in 2010–11.

Source: Reference 23

Figure 98 Selected federal offences proven guilty in the higher courts by sentence type, 2010–11 (%)

Selected federal offences proven guilty in the higher courts by sentence type, 2010–11 (%)

Note: CPO=Commonwealth property offences. CSO=Commonwealth sexual offences. MPS=migration and people smuggling offences

  • Custodial orders were the most common sentence handed down in higher courts in response to selected federal offences. For example, 90 percent of defendants found guilty of a federal drug offence received a custodial order, while the same was true for 85 percent of financial offences.
  • The proportion of defendants who received a non-custodial order ranged from 10 percent of those found guilty of a drug offence to 47 percent of defendants found guilty of a communications offence.

Source: Reference 23

Figure 99 Selected federal offences proven guilty in the Magistrates’ and children’s courts by sentence type, 2010–11 (%)

Selected federal offences proven guilty in the Magistrates’ and children’s courts by sentence type, 2010–11 (%)

a: Includes transfers to other courts, defendants deceased, unfit to plead, transfers to non-court agencies and other non-adjudicated finalisations not elsewhere classified

Note: CPO=Commonwealth property offences. CSO=Commonwealth sexual offences. MPS=migration and people smuggling offences

  • For federal defendants found guilty of CSOs, 51 percent received an ‘other non-custodial’ sentence, while 43 percent received a custodial sentence. No defendants received a monetary order as a result of being found guilty of a CSO in 2010–11.
  • The proportion of federal defendants who received a monetary order ranged from 25 percent of defendants guilty of MPS offences to over half (55%) of those guilty of a federal financial offence.
  • Less than 10 percent of federal defendants received community supervision or a work order for any offence except MPS offences. In 2010–11, 21 percent of defendants guilty of MPS offences were sentenced to community supervision or work orders.

Source: Reference 23