Western Australian Numbered Acts Western Australian Numbered Acts Section 5 is repealed
and the following section is inserted instead —
“
5. “Summary conviction
penalty”, meaning and effect
(1) This section
applies if —
(a) a
provision of this Code, or another written law, provides a summary conviction
penalty for an indictable offence; and
(b) a
person (the "defendant") is charged before a
court of petty sessions (the "court") with committing the indictable offence
in circumstances where the summary conviction penalty applies
to the offence (the "charge").
(2) Despite
section 3(2), the court is to try the charge summarily unless —
(a) on
an application made by the prosecutor or the defendant before the defendant
pleads to the charge, the court decides under subsection (3) that the
charge is to be tried on indictment; or
(b) this
Code or another written law expressly provides to the contrary.
(3) The court may
decide the charge is to be tried on indictment if and only if it
considers —
(a) that
the circumstances in which the offence was allegedly committed are so serious
that, if the defendant were convicted of the offence, the court would not be
able to adequately punish the defendant;
(b) that
the charge forms part of a course of conduct during which other offences were
allegedly committed by the defendant and the defendant is to be tried on
indictment for one or more of those other offences;
(c) that
a co-accused of the defendant is to be tried on indictment;
(d) that
the charge forms part of a course of conduct during which other offences were
allegedly committed by the defendant and others and the defendant or one of
the others is to be tried on indictment for one or more of those other
offences; or
(e) that
the interests of justice require that the charge be dealt with on indictment.
(4) For the purposes
of making a decision under subsection (3) the court —
(a) may
require the prosecutor to provide any information the court needs and may hear
submissions from both the prosecutor and the defendant; and
(b) may
adjourn the proceedings.
(5) If under
subsection (3) the court decides that the charge is to be tried on
indictment the court shall —
(a) give
reasons for the decision; and
(b) deal
with the defendant in accordance with Part V of the Justices Act 1902 .
(6) A decision cannot
be made under subsection (3) after the defendant has pleaded to the
charge.
(7) A decision made
under subsection (3) is final and cannot be appealed.
(8) If the court
convicts the defendant of the offence charged (whether after a plea of guilty
or otherwise), the defendant is liable to the summary conviction penalty
provided for the offence, unless the court commits the defendant for sentence.
(9) If the
court —
(a)
convicts the defendant of the offence charged after a plea of guilty; and
(b)
considers that any sentence the court could impose on the defendant for the
offence would not be commensurate with the seriousness of the offence,
the court may commit
the defendant to a court of competent jurisdiction for sentence.
(10) A defendant who
is committed for sentence under subsection (9) is liable to the penalty
with which the offence is punishable on indictment.
(11) For the purposes
of this section and of any summary trial of the charge, the court must be
constituted by a magistrate alone, or if there is no magistrate and the
defendant consents, by 2 justices.
”.