Criminal law
Summary offences in NSW
These are the charges people are most likely to face and least likely to take seriously. Most are finalised in the Local Court in a single appearance, many can be dealt with by an on the spot fine that produces no criminal record at all, and there is a six month time limit on bringing them that is missed more often than you would expect. What they have in common is that the conviction outlasts the penalty by years.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Our lawyers include former prosecutors. We appear in Local Courts across New South Wales.
On this page
What a summary offence is On the spot fines Offensive language and conduct Move on directions Trespass Knives and weapons Other offences Defences Sentencing options Common questions
What a summary offence actually is
A summary offence is one dealt with by a magistrate in the Local Court, without a jury. An indictable offence is one that can go to the District Court and be tried by a jury. The distinction decides where you appear, what the maximum penalty is, and how long the prosecution has to bring the charge.
- The ceiling is two years. Whatever a summary offence carries, the Local Court cannot exceed two years for a single offence, or five years in aggregate where there are several
- There is a six month time limit. Proceedings for a summary offence must generally be commenced within six months of the date of the alleged offence, unless the legislation creating it says otherwise. This is a complete answer where it applies and it is worth checking on every summary matter
- Many carry no imprisonment at all. Offensive language is one of them, which surprises people who have been told they could go to gaol for swearing
- Some can be resolved without a court appearance, by penalty notice, with no conviction and nothing on your record
Not everything dealt with in the Local Court is a summary offence. A large group of indictable offences, listed in tables to the legislation, are dealt with summarily unless one side elects to take them to the District Court. Those are indictable offences being heard summarily, not summary offences, and the six month time limit does not apply to them. Knife offences moved into this category in 2023, which is the most common misunderstanding on this page.
On the spot fines, and when to pay one
Police can deal with a large number of summary offences by issuing a penalty notice instead of charging you. Where that happens, paying the notice ends the matter. There is no conviction, nothing appears on your criminal record, and you do not attend court.
| Offence | Penalty notice | Maximum if dealt with in court |
|---|---|---|
| Offensive language | $500 | $660, no imprisonment |
| Offensive conduct | $500 | $660 and 3 months |
| Continuing intoxicated and disorderly after a move on direction | $200 | $1,650 |
| Larceny, where the property is worth $300 or less | $300 | 2 years and a $2,200 fine |
| Goods in custody | $350 | 6 months and a $550 fine |
The last two are not summary offences, which is worth knowing. Larceny is an indictable offence dealt with summarily, and it carries a five year maximum if it ever reaches the District Court. Police can still deal with it by notice where the value is low, and most retail theft is resolved that way. More on shoplifting and the $300 notice.
- You can elect to have the matter heard in court instead. That is occasionally right where the allegation is genuinely disputed, but it exposes you to a conviction that paying the notice would have avoided, and to a larger fine
- Police keep their own record of notices issued even though nothing goes on your criminal record
- Unpaid notices lead to enforcement, which can include suspension of your licence and registration
More on criminal infringement notices, including when a notice is worth challenging.
Offensive language and offensive conduct
These are two separate offences and they are commonly charged together with resisting or hindering police after a street interaction has escalated.
Offensive language
Using offensive language in, near, or within hearing from a public place or a school. The maximum is $660 and there is no term of imprisonment attached. The court can still impose a community correction order with a community service condition despite that.
Offensive conduct
Conduct that is offensive in, or within view or hearing of, a public place or a school. The maximum is $660 and three months imprisonment. Importantly, a person is not guilty of offensive conduct where the conduct consists only of offensive language. If the allegation is really about what was said, the correct charge is the lesser one.
Offensive is judged by a reasonable person, in context. Language that would wound feelings or arouse anger, resentment, disgust or outrage in a reasonable person, assessed against where it happened, who heard it and what was going on. Words that are commonplace in ordinary speech are frequently held not to be offensive, and the context does a great deal of work. There is also a statutory defence of reasonable excuse, which the defendant has to establish.
Move on directions
Police can direct a person to leave a public place and not return for a specified period, up to six hours. The grounds are limited: that the person is obstructing others or traffic, harassing or intimidating someone, causing fear, or is there to obtain or supply a prohibited drug. There is a separate power where a person is intoxicated and disorderly.
- The direction has to be lawful. Police must give the reason, warn that failing to comply is an offence, and the direction must be reasonable in the circumstances. Where any of that was not done, the direction may not be enforceable
- Failing to comply is a separate offence carrying a fine
- Being intoxicated and disorderly again within six hours of a move on direction, in that or any other public place, is an offence carrying $1,650. It attracts a $200 penalty notice. There is a defence of reasonable excuse
- You cannot be convicted of both that offence and failing to comply with the direction for the same conduct
Most of these matters begin with a lawful direction and end with a charge for what happened next. Whether the original direction was validly given is the first thing to examine, because if it was not, what followed frequently falls with it.
Trespass and unlawful entry on inclosed lands
Entering inclosed lands without the consent of the owner, occupier or person apparently in charge, or remaining after being asked to leave. Inclosed lands means land enclosed by a fence, wall or other barrier, whether or not it is fully enclosed.
| Offence | Maximum penalty |
|---|---|
| Unlawful entry on inclosed lands | $550 |
| Unlawful entry on prescribed premises | $1,100 |
| Unlawful re-entry after being directed to leave | $1,100 |
| Aggravated unlawful entry on inclosed lands | $5,500 |
The aggravating circumstances are interfering with, or attempting to interfere with, the conduct of a business or undertaking, doing anything that gives rise to a serious risk to the safety of any person, and setting a trap. The first of those is drawn broadly and is the one usually relied on.
Whether the land was in fact inclosed, whether it was adequately signed or fenced, and whether you knew you were not permitted to be there are all real issues rather than technicalities.
Knives and offensive implements
The knife offences are no longer summary offences. In 2023 the two main provisions were repealed from the Summary Offences Act and re-enacted in the Crimes Act with the maximum penalties doubled. They are now Table 1 indictable offences, dealt with in the Local Court unless either side elects the District Court. If you have been told these carry two years, that advice is out of date.
| Offence | Maximum penalty |
|---|---|
| Custody of a knife in a public place or school | 4 years and a $4,400 fine |
| Using a knife, or carrying a visible knife, in a way likely to cause a reasonable person to fear for their safety | 4 years and an $11,000 fine |
| Custody of an offensive implement in a public place or school | 2 years and a $5,500 fine, and the court can order forfeiture |
Reasonable excuse, and the onus
Having a reasonable excuse is a defence, and the onus is on you to establish it on the balance of probabilities. Recognised excuses include that the knife was reasonably necessary for your lawful occupation, education or training, for the preparation or consumption of food, for participation in a lawful entertainment, recreation or sport, for exhibition or retail sale, for a genuine collection, or for a lawful religious or cultural purpose. It extends to travel to and from those activities.
Self-defence is expressly not a reasonable excuse, and neither is defending someone else. That is the single most common explanation people give and it is the one the legislation rules out.
An offensive implement is broader than a weapon
It covers anything made or adapted to cause injury, and anything the person having custody of it intends to use to injure or menace a person or to damage property. Ordinary objects fall inside that definition depending on what they were being carried for, which makes intention the whole argument in most of these matters.
Wanding
Since December 2024 police have had power to require a person in a designated area to submit to a scan with a hand held metal detector, without a warrant and without reasonable suspicion. A designated area has to be declared by an officer of the rank of Assistant Commissioner or above, on defined criteria, and lasts up to twelve hours. Failing to comply with a request to be scanned is a separate offence.
Whether the area was validly declared, and whether the power was exercised within its terms, are questions capable of being examined. Where a search was unlawful, what was found through it may be excluded.
Other offences that come through the Local Court
Obscene exposure
Wilfully and obscenely exposing a person in or within view from a public place or school. Six months and a $1,100 fine. It is charged more often than people expect, frequently arising out of intoxication rather than anything sexual.
Selling a knife to a child
Selling a knife to a person under 16 carries $11,000 and twelve months. There is a separate offence of selling to a person aged 16 or 17 without reasonable excuse, with exemptions for young people who need a knife for work or study.
Allowing a child to carry a knife
A parent or person with care of a child under 18 who knowingly allows them to have custody of a knife in a public place or school. A $550 fine.
Resisting or hindering police
The charge that most often accompanies an offensive language or move on matter. Whether police were acting in the execution of their duty at the time is the central question.
Shoplifting
Charged as larceny, not as a summary offence, though police frequently deal with it by a $300 notice instead. The consequences of a conviction are out of all proportion to the value involved.
Criminal infringement notices
When police can issue one, what happens if you pay, and when electing to have the matter heard in court is worth the risk of a conviction.
Goods in custody
Being found with property reasonably suspected of being stolen. Six months, or twelve for a vehicle, with a statutory defence that puts the onus on you.
Affray and violent disorder
Where a public order matter escalates. Violent disorder is summary. Affray is not, and it carries ten years.
Traffic matters are also dealt with summarily and have their own consequences for your licence. More on traffic law.
Defences and arguments
The charge is out of time
Proceedings for a summary offence must generally be commenced within six months of the alleged offence. Where that has not happened the matter is at an end. It is checked far less often than it should be.
Reasonable excuse
A statutory defence attaching to a number of these offences, including offensive language, offensive conduct, knife custody and continuing intoxicated behaviour. The onus is yours, but only on the balance of probabilities.
The conduct was not offensive
Judged objectively, in context, by reference to a reasonable person. Where it happened, who was present and what preceded it all matter, and language that is commonplace is frequently held not to meet the standard.
The police direction or search was unlawful
Whether a move on direction was validly given, whether a wanding area was properly declared, and whether a search was justified. Where the power was not validly exercised, what followed from it is open to challenge.
It was not a public place
Most of these offences require a public place, a school, or inclosed lands. Whether the location met the definition at the relevant time is a question of fact.
Mental health and cognitive impairment
Where relevant, the Local Court can deal with a matter by way of a treatment plan rather than a conviction. In this area, where the offending is frequently a symptom rather than a choice, it is one of the most useful outcomes available and it needs evidence prepared beforehand.
Sentencing options in NSW
Get advice before pleading guilty to anything. The court can impose any of the following, and a well-prepared sentencing is what produces the best available outcome.
Dismissal without conviction
No conviction recorded and no further penalty. The matter is finalised as you leave court, and at this level it is a realistic outcome.
Conditional release order
A bond, available with or without a conviction, supervised or unsupervised. The standard conditions are to commit no further offence and to appear if called on, and further conditions can include rehabilitation, abstinence, curfews and non-association or place restriction orders.
Conviction with no other penalty
A conviction is recorded but nothing further is imposed.
Fine
Can be imposed alone or with a bond, and is a conviction. Usually payable within 28 days, though the registry can extend the time or arrange a plan. Non-payment leads to enforcement, which can include licence and registration suspension.
Community correction order
More serious than a conditional release order, for up to three years, supervised or unsupervised, with conditions that can include community service, curfews, abstinence and rehabilitation. It is available for offensive language even though that offence carries no term of imprisonment.
Intensive correction order
A sentence of imprisonment served in the community under strict supervision. Rarely relevant at this level, but available on the more serious offences dealt with in the Local Court.
A word on written pleas of guilty. Police sometimes hand you a form allowing you to plead guilty in writing without attending. It looks convenient and at this level it is the most common mistake we see. On a written plea the magistrate has only the police fact sheet and your record, and knows nothing about you or anything mitigating. A dismissal without conviction is realistically available on most of these charges, and pleading by post gives it away for the sake of avoiding a morning at court.
Common questions
Will a summary offence give me a criminal record?
Only if you are convicted. A penalty notice that you pay produces no conviction and nothing on your record. If you are charged and the matter goes to court, a dismissal without conviction is realistically available on most of these offences, particularly on a first appearance. It is not automatic and it depends on what is put before the magistrate.
Can I really be charged for swearing?
Yes, but it carries no term of imprisonment and a maximum fine of $660, and the usual course is a $500 penalty notice. Whether language is offensive is judged objectively in context, and words that are commonplace in ordinary speech are frequently held not to meet the standard. There is also a defence of reasonable excuse.
I was told carrying a knife was a two year offence.
That changed in 2023. Custody of a knife in a public place or school moved out of the Summary Offences Act into the Crimes Act, the maximum doubled to four years and a $4,400 fine, and it is now an indictable offence that can be taken to the District Court. Carrying one visibly in a way likely to cause fear carries four years and $11,000. A great deal of the advice online still gives the old figures.
I carry a knife for protection.
That is expressly not a reasonable excuse, and neither is carrying one to protect someone else. The legislation lists what does count, including work, education, food preparation, sport, retail and genuine collection, and self-defence is not on it. This is the most common explanation given and the one that does not work.
Police scanned me with a wand. Were they allowed to?
Only in a designated area, declared by a senior officer on defined criteria and lasting up to twelve hours. Within one, police do not need a warrant or reasonable suspicion. Whether the area was validly declared, and whether the power was exercised within its terms, are questions worth asking, because if a search was unlawful what was found may be excluded.
The incident was more than six months ago.
Then the charge may be out of time. Proceedings for a summary offence generally have to be commenced within six months of the alleged offence, and where that has not happened the matter is at an end. The limit does not apply to indictable offences being dealt with summarily, which now includes the knife offences, so which category your charge falls into matters.
Should I just pay the fine?
Usually yes, because paying ends the matter with no conviction and no record. Court election is worth considering only where you genuinely dispute the allegation or the police powers used, and it carries the risk of a conviction and a larger fine. Take advice before electing rather than after.
I was caught shoplifting. Is that a summary offence?
No. Shoplifting is charged as larceny, which is an indictable offence dealt with in the Local Court, so the six month time limit does not apply and the maximum is five years if it ever goes to the District Court. In practice police often deal with low value retail theft by a $300 notice instead, which produces no conviction. More on shoplifting.
Do I have to attend court?
If you have a court attendance notice, yes, or someone must appear for you. Not attending can result in the matter being dealt with in your absence, or a warrant. We can appear for you in most Local Court matters without you being present.
What should I bring to a first appointment?
The court attendance notice or penalty notice, the police fact sheet, any bail conditions, and any footage or messages relevant to what happened. If police gave you a direction or searched you, write down exactly what was said and in what order while it is fresh. If you have none of it, come anyway.
Small charge, long consequences
A conviction for a minor public order offence sits on your record alongside everything else, and it affects employment, licensing and travel for years after a $660 fine is forgotten. Most of these matters can be finalised without one. Speak to us before your court date.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. Courts we appear in.