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. 4. Mr Booth was taken from the hotel and taken home. A few days later on 4 February 2007 he reported to the Armidale Police Station, and told the police that he had been drinking for a good part of the day. For this behaviour, the magistrate as I said, sentenced him to gaol for a month. 5. Joshua Booth has a criminal record. Most of it is related to driving. He has twice been convicted of driving with a prescribed concentration of alcohol in his blood, one of them being the high range. That conviction was 2004 and he received a suspended sentence. He also drives his car whilst suspended. Another more relevant conviction is the conviction for behaving in an offensive manner in public. That occurred in 2005. Mr Booth who was called to give evidence by his counsel Mr O'Connor, explained that he was again drunk and on this occasion he had pushed an acquaintance over in the street. He was given a bond for that. He breached that bond. There is a pre-sentence report in respect of Mr Booth. It details his personal history. 6. His family circumstances: he had a very difficult upbringing, being cared for by his older sister for a good period of time. She was only two years older than he was. He left school at year 9 and has been in employment since, first in semi skilled areas. At the moment though he has a job as a miner. He has had that job since March this year, he told me in evidence. He loves the job, it is a very responsible job involving explosives. It pays well: he brings home about a thousand dollars a week. This has made a difference to his life. 7. There is a second thing which has made a difference to his life, that is a relationship. He has met Tammy McCallum and they have moved in together. The combination of his new job and his new relationship have resulted in a subduing of his behaviour. His new job involves him working long hours. He is not allowed to drink at all whilst he is working or before or after working, because he is not allowed to have any alcohol present in his system during employment. He and other employees are randomly breath tested. 8. He works from Monday to Friday either the day shift or the night shift. They are long shifts, hence he is alcohol free for most of the if not all of the week. He comes home tired and usually does not go out during the week. He and Tammy McCallum tend to socialise at weekends. His socialising now takes the form of attending barbecues rather than going drinking to excess with his mates. 9. Despite a criminal record which is associated with alcohol, including this offence, driving offences and the previous offensive behaviour in public, Mr Booth does not consider that he has an alcohol problem. This is confirmed by the pre-sentence report, which is why the pre-sentence report assesses him as unlikely to benefit from supervision because he considers that there are no issues that need to be addressed. Hence the report recommends supervision only as a monitoring or punitive role. 10. Mr O'Connor submits that the offence is not one which is an objectively serious example of this kind of behaviour. I accept that submission. As Mr O'Connor said, it was not a sexualised exposure. It did not instil that fear into the victim which a sexualised exposure would do. The victim was an adult male, it was not in a secluded area but in a public place. As he said it was a typical example of a street offence related to alcohol where his client was playing the fooling and being a public nuisance. I accept these submissions. He also emphasised the significant changes which have been brought to his life by his new job and his relationship. 11. Ms Mudge submits that the offence warrants a penalty more significant than a fine, I am inclined to agree with that submission. I too am concerned about his record which appears to indicate a tendency to behave inappropriately in public, usually as a result of drinking too much. 12. What I propose to do is to impose a fine and to put him on a bond for a period of time. I should say that I am of the view that the offence is not so serious as to warrant a custodial sentence. Because I am of that view a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 is not an appropriate option. He has been assessed as unsuitable for a periodic detention order and unfortunately as unsuitable for a community service order, which might have been a good sentencing option. My own sentencing options are quite limited. Because of the necessity to deter Mr Booth from this sort of behaviour, I am going to impose a fine which is close to the maximum and I am going to impose a good behaviour bond for a year, but make supervision very much at the option of the Probation and Parole Service. 13. Would you stand up Mr Booth. In your sentence appeal, under s 20(2)(b) of the Crimes (Appeal and Review) Act 2001 I determine this appeal against sentence by varying the sentence of the magistrate in the following way. Instead of imposing a sentence of imprisonment I fine you an amount of eight hundred dollars, and instead of imposing imprisonment I make an order directing you to enter into a good behaviour bond for one year. The good behaviour bond will be subject to conditions. There will be conditions of your bond that you will appear before the Court if called on to do so at any time during the twelve months bond. That you will be of good behaviour. That you will notify the Court of any change of your residential address and that you accept the supervision of the Probation and Parole Service and any recommendations which that service considers appropriate. Anything else Ms Mudge or Mr O'Connor? MUDGE: I just think your Honour in relation to Probation and Parole Service, perhaps if the wording for the supervision being as long as considered necessary. HIS HONOUR: That's right I was trying to remember what you said. MUDGE: Yes to accept the supervision for as long as considered necessary. 14. And I make it part of the condition concerning supervision by the Probation and Parole Service that you accept that supervision for as long as the Probation and Parole Service considers necessary. HIS HONOUR: Anything Mr O'Connor? O'CONNOR: No your Honour. 15. Mr Booth I've allowed your appeal. I think a month's gaol was a bit heavy for what you did. You made a nuisance of yourself. I am satisfied you understood that. You behaved stupidly, I fined you a fair amount of money, you've got a good earning capacity. It just occurs to me, you probably want some time to pay, a month. MUDGE: Actually the formal orders are 28 days to pay. HIS HONOUR: Is that automatic order. MUDGE: Perhaps if your Honour-- 16. I allow 28 days to pay. And you're on a good behaviour bond and I should have added for the purpose of facilitating you going into that bond you should report to the office of the Probation and Parole Service at Armidale, on or before Wednesday of next week 17 October 2007 at 4pm, so you've got a week to report. Anything else? MUDGE: No that completes the matter. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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