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District Court 10 July 2007

BOOTH, Joshua Allan v R

[2007] NSWDC 394

Public order & justice offences
CRIMINAL LAW SENTENCE APPEAL OFFENSIVE BEHAVIOUR IN PUBLIC CRIMINAL RECORD

Citation: BOOTH, Joshua Allan v R [2007] NSWDC 394
Court: District Court of New South Wales
Date: 10 July 2007
Judge(s): Cogswell SC DCJ

Background

The appellant was a young man convicted in the Local Court at Armidale of behaving in an offensive manner in a public place. The conduct occurred on Australia Day 2007, outside a hotel, when the appellant, who had been drinking for much of the day, exposed himself and simulated masturbation in front of a stranger following a brief altercation. The magistrate sentenced him to one month's imprisonment.

The appellant had a prior criminal record, including two drink-driving convictions, driving whilst suspended, and a previous conviction for offensive behaviour in public in 2005. He appealed to the District Court on the ground that the sentence was manifestly excessive.

By the time of the appeal, the appellant had secured employment as a miner, which required him to remain alcohol-free throughout the working week, and had entered into a new relationship. Both circumstances had produced a marked change in his lifestyle.

  • Whether a sentence of one month's imprisonment was appropriate for an offence of offensive behaviour in public that was not objectively serious in character.
  • Whether, given the limited sentencing options available, a non-custodial sentence was the correct outcome.

Decision

The District Court accepted the submission that the offence was not an objectively serious example of offensive behaviour in public. The court noted the conduct lacked a sexual overtone, involved an adult male victim in a public place rather than a secluded area, and was characteristic of a street offence by an intoxicated person behaving as a public nuisance. The court was satisfied the conduct amounted to no more than simulated masturbation.

The court found that the offence did not warrant a custodial sentence. Because the court took that view, a suspended sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999 was not a legally appropriate option. The appellant had also been assessed as unsuitable for periodic detention and for a community service order, which the court noted might otherwise have been a suitable disposition.

The court's sentencing options were therefore limited. Taking into account both the need for personal deterrence (given the appellant's pattern of alcohol-related offending) and the genuine changes in his circumstances, the court imposed a fine close to the maximum and a 12-month good behaviour bond with Probation and Parole supervision.

Orders Made

  • Appeal allowed.
  • Sentence of one month's imprisonment set aside.
  • Fine of $800 imposed, with 28 days to pay.
  • Appellant ordered to enter into a good behaviour bond for one year, subject to conditions including: appearance before the court if called upon; good behaviour; notification of any change of residential address; and acceptance of Probation and Parole Service supervision for as long as that service considered necessary.
  • Appellant directed to report to the Probation and Parole Service in Armidale by 17 July 2007.

Key Takeaways

  • The District Court confirmed that a sentence of one month's imprisonment was manifestly excessive for an instance of offensive behaviour in public that was not objectively serious and lacked any sexualised element.
  • Where a sentencing court concludes that an offence does not warrant imprisonment, a suspended sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999 is not available, since that provision contemplates cases where a custodial term is otherwise appropriate but is suspended.
  • Significant post-offence changes in a defendant's circumstances, including stable employment and a change in lifestyle, are relevant mitigating factors on a sentence appeal.
  • A prior record of alcohol-related offending, including a previous conviction for offensive behaviour, can justify a penalty above a modest fine even where the current offence is not objectively serious.
  • In dismissing a custodial term, limited availability of non-custodial options (such as community service or periodic detention) may constrain the sentencing court to a fine and bond as the only practicable alternatives.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences)
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)(b) (determination of sentence appeals)

Cases cited: None cited in the judgment.