BOOTH, Joshua Allan v R [2007] NSWDC 394

New South Wales District Court

CITATION: BOOTH, Joshua Allan v R [2007] NSWDC 394

JUDGMENT DATE: 10 July 2007

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The appeal is allowed.

CATCHWORDS: CRIMINAL LAW - sentence appeal - offensive behaviour in public - criminal record - not an objectively serious example of the behaviour - significant changes in appellant's life since commission of offence

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 12

PARTIES: Joshua Allan Booth Regina

FILE NUMBER(S): 07/52/0301

SOLICITORS: Ms Mudge for Director of Public Prosecutions Mr O'Connor for Mr Booth

JUDGMENT

1. This is an appeal by a young man who has misbehaved himself in public. He was sentenced for this behaviour by the learned magistrate, sitting in the Local Court at Armidale, to one month imprisonment. He is appealing to me against the severity of that sentence.

2. What happened is that it was Australia Day 2007. The young man whose name is Joshua Allan Booth, was at the Royal Hotel in Armidale. A man pulled up in a car nearby, Mr Booth walked over and approached the car. The driver of the car who was a stranger to Mr Booth thought that he was trying to assault him in some way, so he struck back at Mr Booth. Mr Booth responded by going back towards the hotel, pulling his pants and his underwear down to his knees and masturbating his penis in front of this stranger. I should add here that I am not satisfied beyond reasonable doubt that that activity of masturbating his penis had any sexual overtone. I am satisfied that it amounted to no more than simulated masturbation.

3. The victim was offended by the behaviour and reported him to the Armidale Police. The Armidale Police turned up at the hotel and told him not to go in. But he went back in. The police came back. The victim came back as well because he had lost something. The victim who initially did not want to press formal charges, to use the colloquialism, changed his mind and asked the police to treat the matter formally.