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 20 and 21

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 20 and 21

Lodgements

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

In 2011–12, 772,696 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 20

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 69 Timeliness of matters finalised in Magistrates’ court by method of finalisation, 2011–12 (%)

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a: Includes guilty plea and guilty verdict

  • The majority of matters in the Magistrates’ court in 2011–12 (72%) 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 be finalised, compared with 42 percent of those resulting in acquittal.
  • In 2011–12, only five percent of matters took greater than 52 weeks to finalise. The majority of these were for matters that ended in an acquittal.
  • Overall, 15 percent of defendants were finalised within 13 to 26 weeks, followed by six percent that were finalised between 26 and 39 weeks.

Source: Reference 21

Figure 70 Timeliness of matters finalised in higher courts by method of finalisation, 2011–12 (%)

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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 2011–12, the greatest proportion of defendants’ before the higher courts were finalised between 13 and 26 weeks (27%), followed by 24 percent of matters that took greater than 52 weeks.
  • Matters where defendants were found guilty generally took longer than any other finalisation method. Just over half of matters resulting in a guilty verdict took longer than 52 weeks to finalise, compared with 35 percent of matters that resulted in acquittal and 19 percent that ended with a guilty plea.
  • Matters ending in a guilty plea generally took the least time to finalise, with 18 percent of matters being resolved in less than 13 weeks compared with four percent of matters ending in acquittal and two percent that ended in a guilty verdict.

Source: Reference 21

Figure 71 Timeliness of matters finalised in the children’s courts by method of finalisation, 2011–12 (%)

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a: Includes guilty plea and guilty verdict

  • In 2011–12, three in five defendants (60%) in the children’s courts were finalised in less than 13 weeks. This trend was driven mainly by the 63 percent of defendants who were proven guilty in 2010–11.
  • Similar proportions of matters before the children’s courts and that were ultimately acquitted were finalised in less than 13 weeks (34%) or between 13 and 26 weeks (32%).
  • Overall, only 18 percent of all defendants took more than 26 weeks to finalise.

Source: Reference 21

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 72 Criminal cases finalised in Magistrates’ court by method of finalisation, 2011–12a (%)

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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= 523,166

  • In 2011–12, the majority of criminal cases finalised in the Magistrates’ court resulted in a proven guilty finding (86%). Eight percent of cases were withdrawn by the prosecution, three percent were acquitted and a further three percent were transferred to other court levels.

Source: Reference 21

Figure 73 Criminal cases finalised in higher courts by method of finalisation, 2011–12 (%)

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a: Includes guilty plea and guilty verdict

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

Note: n=15,479

  • While 77 percent of criminal cases finalised in the higher courts ended with a proven guilty finding, eight percent were acquitted. Thirteen percent were withdrawn by the prosecution and one percent of cases were transferred to other court levels.

Source: Reference 21

Figure 74 Criminal cases finalised in children’s courts by method of finalisation, 2011–12

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a: Includes guilty plea and guilty verdict

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

Note: n=33,604

  • In 2011–12, the majority of cases finalised in children’s courts resulted in a proven guilty finding (79%), while four percent were acquitted.
  • Ten percent of matters were withdrawn by prosecution and three percent were transferred to other court levels.

Source: Reference 21

Figure 75 Adjudicated defendants in Magistrates’ court by age and sex, 2011–12 (rate per 100,000 relevant persons)

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  • Males aged 20–24 years were the group most commonly adjudicated in the Magistrates’ court in 2011–12. Females aged 20–24 years were adjudicated at a rate of 2,426 per 100,000 females compared with 8,974 per 100,000 males.
  • The rate of male adjudication in the Magistrates’ court declined by 83 percent between the ages of 20–24 and 45 years and over. In 2011–12, males aged 45 years and over were adjudicated at a rate of 1,490 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 275 per 100,000 and males were adjudicated at a rate of 1,106 per 100,000 population.

Source: References 2 and 21

Figure 76 Adjudicated defendants in higher courts by age and sex, 2011–12

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  • 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.
  • The rate of adjudication was lowest for defendants of both sexes aged less than 20 years. Specifically, males were adjudicated at a rate of 32 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 32 per 100,000 population, compared with 30 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 (307 compared with 216 per 100,000 population). The adjudication rate was lower still for those aged 35–44 years at 157 per 100,000 population.

Source: References 2 and 21

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 77 Principal sentence of defendants found guilty in Magistrates’ courts by age in years, 2011–12 (n)

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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

  • In 2011–12, non-custodial orders were the most common sentence handed down in the Magistrates’ courts, constituting 392,821 or 91 percent of all sentences.
  • Defendants aged 25–34 years received the greatest number of sentences in 2011–12. Specifically, 37 percent of custodial and 30 percent of non-custodial sentences were handed down to defendants aged 25–34 years.

Source: Reference 21

Figure 78 Defendants found guilty in higher courts by age and principal sentence, 2011–12 (n)

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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 the higher courts in 2011–12 more commonly received a custodial than a non-custodial sentence. Of the 12,140 sentences handed down in the higher courts in 2011–12, 10,726 (88%) were custodial orders.
  • The proportion of custodial orders handed down to defendants by the higher courts was greatest among the 25–34 year group (31%), while defendants aged 20–24 years were handed the largest proportion of non-custodial orders of any other age group (27%).

Source: Reference 21

Figure 79 Principal sentence of adult male defendants found guilty in any courta, 2011–12 (%)

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a: Includes Magistrates’ and higher courts

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

Note: n=356,290 (excludes male defendants whose type of custodial order handed down was unknown)

  • In 2011–12, 68 percent of males found guilty in Australian courts received a monetary order. Fourteen percent received other non-custodial orders, while five percent were sentenced to community supervision/work orders.
  • Of those who received custodial sentences, seven percent were sentenced to custody in a correctional institution, five percent received a fully suspended sentence and one percent served custody in the community.

Source: Reference 21

Figure 80 Principal sentence of adult female defendants found guilty in any courta, 2011–12 (%)

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a: Include Magistrates’ and higher courts

b: Includes intensive corrections orders, home detention and other orders by which liberty is restricted, although living within the community

Note: n=101,009

  • In 2011–12, 71 percent of female defendants who were found guilty in Australian courts received a monetary order. A further 18 percent of female defendants received other non-custodial orders.
  • Approximately six percent of female defendants received a custodial sentence in 2011–12. Specifically, three percent were sentenced to custody in a correctional institution, three percent received a fully suspended sentence and less than one percent served custody in the community.

Source: Reference 21

Figure 81 Principal sentence of defendants found guilty in a children’s court, 2011–12 (%)

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Note: n=26,525

  • In 2011–12, the most common sentences handed down to defendants found guilty in children’s courts were other non-custodial orders (46%), community supervision or work orders (28%) and monetary orders (15%).
  • Only 11 percent of defendants in the children’s courts received a custodial sentence. Specifically, six percent were sentenced to custody in a correctional institution, three percent received a fully suspended sentence and two percent served custody in the community.

Source: Reference 21

Figure 82 Principal sentence of adult defendants found guilty in Magistrates’ courts by most serious offence, 2011–12

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

  • A greater proportion of custodial orders were handed down in the Magistrates’ courts for UEWI and sexual assault. Fifty-one percent of defendants found guilty of UEWI and 41 percent found guilty of sexual assault received a custodial sentence in 2011–12.
  • Monetary orders were the most common sentence awarded to defendants found guilty of traffic-related crimes (84%) or dangerous or negligent acts endangering persons (75%).
  • Defendants found guilty of AICI and sexual assault were commonly given other non-custodial orders (41% and 40%, respectively).

Source: Reference 21

Figure 83 Principal sentence of defendants found guilty in higher courts by most serious offence, 2011–12

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  • In 2011–12, defendants found guilty in higher courts most commonly received custodial orders compared with any other sentence across all offence types. No defendants found guilty of homicide or robbery received a non-custodial sentence. Defendants convicted of theft offences were more likely to be awarded non-custodial monetary orders (7%) and other non-custodial orders (16%) than defendants convicted of any other offence in 2011–12.

Source: Reference 21

Figure 84 Principal sentence of defendants found guilty in a children’s court by most serious offence, 2011–12 (%)

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a: Includes environmental pollution

  • In 2011–12, it was generally uncommon for defendants found guilty in the children’s courts to receive custodial sentences. Defendants found guilty of committing robbery were more likely to receive a custodial order (36%) than those found guilty of sexual assault (30%), UEWI (18%) and AICI (18%).
  • Non-custodial monetary orders were most common for defendants found guilty of traffic-related offences (53%).
  • The majority of defendants found guilty in children’s courts received other non-custodial orders for all offence types. This was the case for 85 percent of defendants found guilty of public order offences, 82 percent found guilty of property damage/environmental pollution and 81 percent found guilty of theft.

Source: Reference 21

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 2011–12, a total of 10,809 federal cases were lodged in Australian courts; 89 percent were initiated in the Magistrates’ Court, nine percent in the higher courts and two percent in the children’s courts.

Reference 22

Figure 85 Federal criminal cases finalised in higher courts by method of finalisation, 2011–12 (%)

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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=975

  • In 2011–12, the majority of federal criminal cases (80%) in the higher courts resulted in guilty verdicts.
  • Ten percent of cases were acquitted in 2011–12, while nine percent of matters were withdrawn by the prosecution.

Source: Reference 22

Figure 86 Federal criminal cases finalised in the Magistrates’ and children’s courts by method of finalisation, 2011–12 (%)

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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=9,836

  • The majority of federal criminal cases in the Magistrates’ and children’s courts in 2011–12 resulted in a guilty verdict (69%). Twenty-one percent of cases were withdrawn by the prosecution before a verdict could be reached and three percent were acquitted.

Source: Reference 22

Figure 87 Federal defendants in higher courts by age and sex, 2011–12 (n)

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  • There were no female federal defendants aged less than 20 years in the higher courts in 2011–12 and there were only 28 male federal defendants aged less than 20 years.
  • The greatest number of federal defendants in the higher courts were aged 45 years or older. Eighty-nine percent of federal defendants in this age group were male.
  • The number of female federal defendants was highest in the 35–44 years group.
  • Overall, males accounted for 90 percent (n=869) of federal defendants in the higher courts.

Source: Reference 22

Figure 88 Federal defendants in the Magistrates’ court by age and sex, 2011–12 (n)

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  • There were 6,170 male federal defendants in the Magistrates’ court in 2011–12. Thirty-four percent of these were aged 45 years and over, while 28 percent were aged 35–44 years.
  • Of the 1,958 female federal defendants in the Magistrates’ court, 34 percent were aged 35–44 years, while 30 percent were 45 years and over.

Source: Reference 22

Figure 89 Federal defendants in the children’s court by age and sex, 2011–12 (n)

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  • Very small numbers of federal defendants were prosecuted in the children’s courts in 2011–12. Approximately 45 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 old (n=39), while the largest number of female federal defendants were aged 18 years and over (n=12).

Source: Reference 22

Figure 90 Selected federal offences in the higher courts by method of finalisation, 2011–12 (%)

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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. CSEO=Child sexual exploitation offences

  • The most common method of finalisation for all offences was a proven guilty verdict. Of all offence types, federal defendants charged with child sexual exploitation offences (CSEO) had the highest proportion of a proven guilty verdict (97%). The lowest proportion of defendants proven guilty were those charged with people smuggling offences (54%).
  • In 2011–12, the proportion of federal cases that were acquitted in the higher courts was generally low. The greatest proportion was for people smuggling offences (26%). By comparison, no federal defendants charged with CSEO were acquitted.
  • The proportion of federal cases that were withdrawn by the prosecution varied across offence types. For instance, the proportions range from one percent of CSEO to 19 percent of financial offences.

Source: Reference 22

Figure 91 Selected federal offences in the Magistrates’ and children’s courts by method of finalisation, 2011–12 (%)

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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. CSEO=Child sexual exploitation offences

  • Finalisation of federal offences in the Magistrates’ and children’s court varied by offence type. A proven guilty verdict was more common for fraud offences (82%), financial offences (72%) and communications offences (56%).
  • Federal defendants charged with drug offences in 2011–12 were more likely to have their case withdrawn by prosecution than any other offence type. Specifically for drug offences, 43 percent were withdrawn by prosecution, 35 percent were finalised through other means and 20 percent were proven guilty.
  • An acquittal was uncommon across all offences. The greatest proportion of acquittals was reported for defendants charged with communication offences (6%). No federal defendants charged with CSEO were acquitted.
  • In 2011–12, a large proportion of CSEO and people smuggling offences were finalised through other means (62% and 66%, respectively).

Source: Reference 22

Figure 92 Selected federal offences proven guilty in the higher courts by sentence type, 2011–12 (%)

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Note: CSEO=Child sexual exploitation offences

  • Custodial orders were the most common sentence handed down in higher courts in response to selected federal offences. For example, 79 percent of defendants found guilty of a federal drug offence received a custodial order, while the same was true for 80 percent of those defendants charged with people smuggling.
  • No defendants proven guilty of drug offences or people smuggling were sentenced to custody in the community. The highest proportion of those sentenced to custody in the community was only three percent for both financial and fraud offences.
  • The proportion of defendants who received a non-custodial order ranged from 13 percent of those found guilty of a drug offence to 53 percent of defendants found guilty of a communications offence.

Source: Reference 22

Figure 93 Selected federal offences proven guilty in the Magistrates’ and children’s courts by sentence type, 2011–12 (%)

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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: CSEO=Child sexual exploitation offences

  • For federal defendants found guilty of drug offences, 45 percent received an ‘other non-custodial’ sentence, while 41 percent received a monetary order.
  • The proportion of federal defendants who received a monetary order ranged from nine percent of defendants guilty of CSEO offences to 62 percent 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 people smuggling and CSEO offences. In 2011–12, 21 percent of defendants guilty of people smuggling were sentenced to community supervision or work orders.

Source: Reference 22