Criminal Offences

Offensive Language

As the name suggests, offensive language can be regarded as disorderly, violent, threatening, indecent, and of course, offensive. Sure, in today’s era, swearing, or being offensive in any capacity is regarded a common thing, but that doesn’t negate the fact that using offensive language, in some particular ways, is still considered breaking the law. Use of offensive language is effectively seen as a crime if a person has verbally abused a police officer. 

More specifically speaking, according to the Summary Offences Act 1988 Sect 4A, in NSW:

  1. A person must not use offensive language in or near, or within hearing from, apublic place or a school.
  2. It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.

Additionally, Offensive Conduct is an aggravated form of Offensive Language that attracts more severe penalties.

According to the Summary Offences Act 1988, Sect 4, in NSW:

  1. A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, apublic place or a
  2. A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language.
  3. It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.

In the aforementioned scenarios of Offensive Language and Offensive Conduct, as per the Summary Offences Act 1988- Sect 3, a public place is considered to be any place (whether or not covered by water), or a part of premises. A school, on the other hand, as stated under this particular section is:

  1. a governmentschool or a registered non-government school within the meaning of the Education Act 1990, and
  2. aschool providing education (whether secular or religious) at a pre-school or infants’ school level or at a primary or secondary level, and
  3. a place used for the purposes of an establishment commonly known as a child-minding centre or for similar purposes, and
  4. the land, and any building, occupied by or in connection with the conduct of such a school or place,
  5. and includes any part of such a school or place, but does not include any building that is occupied or used solely as a residence or solely for a purpose unconnected with the conduct of such a school or place.

If you suspect that you may get charged with Offensive Language, it is advisable that you have an expert criminal lawyer on your side who will be able to analyse whether the words you used can be regarded as offensive in the Court.

PENALTIES

As stated under Section 4A of Summary Offences Act 1988, Offensive Language carries a maximum penalty of $660 fine. In the case of Offensive conduct, on the other hand, the maximum penalty may also include imprisonment for 3 months with or without a fine of $660.

Crimes (Sentencing Procedure) act 1999 Sect 8, however, states that the Court, instead of imposing a fine may make a community correction order that is subject to the standard conditions of a community correction order and to a community service work condition (despite the offence not being publishable by imprisonment), or may order the accused to perform community service work under the section 5(1) of the Children (Community Service Orders).

Some of the other alternative penalties that apply to the charge of Offensive Language include Suspended sentence, Good Behaviour Bond, and application of Section 10.

GUILTY

The inclusion and acceptance of offensive language (of abnormal degrees) in our daily conversations serves as one of the many ways someone can easily end up breaking this law in Australia. However, to be proven guilty of an Offensive Language offence, the Prosecution must prove the following beyond a reasonable doubt:

  • You did use offensive language.
  • You were in or near, or within view or hearing from a public place or a school.

In order to be proven guilty for an Offensive Conduct offence, the following must be proven by the Prosecution beyond a reasonable doubt:

  • You conducted yourself in an offensive manner.
  • You were in or near, or within view or hearing from a public place or a school.

However, since the word “offensive” is vague by itself, it can be challenging to determine what accounts to Offensive Language or Offensive Conduct., The Courts have adopted a reasonable person test in relation to these offences. This test determines the following:

  • If the person acted in an offensive manner or used words that are considered offensive.
  • If the conduct was against the standard of acceptable good manners or good taste.
  • If the words used or the conduct breached the rules of basic courtesy or was contrary to the commonly accepted social rules.

The Courts also specified that in this test, the views of the “reasonable person” are not “thin-skinned”, but are born out of tolerance and understanding.

NOT GUILTY

If you plead not guilty to the charges of Offensive Language or Offensive Conduct citing any defences, the Prosecution will beyond a reasonable doubt prove that your arguments do not apply to the charges imposed on you. To overcome such scenarios successfully, you will need legal aid should you be charged with Offensive Language or Offensive Conduct, to work out your possibilities to emerge successfully out of such charges. There are certain defence strategies as well that can support your case should you chose to plead not guilty.

At Benjamin Leonardo – The Defenders, we carry a rich experience of 29 years to help you in criminal legal matters. If you or someone you know is facing charges of Offensive Language, Offensive Conduct, or of any other offences, contact us to know reliable, honest and workable advice.

THE DEFENCE

If you decide to plead guilty, or has been proven guilty of either of these offences, there’s still a chance for you to avoid a criminal conviction if your solicitor can persuade the Magistrate to deal with your case by way of Section 10 of the Crimes (Sentencing and Procedure) Act 1999. If the Court is convinced to pursue your case with Section 10, then no conviction will be recorded, and no or reduced penalty will be imposed. However, the outcomes will also be dependent on the type of Section 10 the Court decides to use in your case. The types of Section 10 include Section 10 (1) (a), Section 10 (2) (b) and Section 10 (c). Also, there are certain factors considered when determining whether or not your case should be pursued with Section 10. These include:

  • Age
  • Character
  • Criminal record, or lack thereof
  • Health
  • Mental health
  • The nature of the offence
  • Any extenuating circumstances
  • Anything the Courts see fit to take into consideration

Some other possible defences for an accused of Offensive Language or Offensive Conduct include but are not restricted to:

Reasonable Excuse: According to the Section 4(3) of Summary Offences Act 1988, to be excused for your Offensive Conduct, you will have to prove to the judge that you had a “reasonable excuse” for your action. The prosecution will then have to prove beyond a reasonable doubt that this defence doesn’t apply to your case. However, in order to defend this charge, you simply need to prove that you did have a “reasonable excuse” on the balance of probabilities.

Duress: Duress, as a defence strategy, is defined as an unlawful coercion of an individual, by use of threats and harm, to partake in an activity that the individual would otherwise, under ordinary circumstances, not participate in. You can use this strategy to defend your charge in the case of Offensive Language or Offensive Conduct.

Necessity: Necessity is when an accused is compelled to break the law to avoid even more dire consequences including an irreparable evil or imminent peril. A difficult defence to prove in the Court, necessity involves some overlapping with the defence strategy of Duress.

Self-Defence: self-defence states that an accused is not liable to be found guilty if they conduct the action to avoid greater harm to themselves or another person, to prevent the unlawful deprivation of their liberty or of another person, to protect property from unlawful taking, or to prevent criminal trespass.

WHICH COURT?

Considering the fact that the offensive Conduct and offensive Language classify as summary offences, these matters will be heard in the Local Court.

At Benjamin Leonardo – The Defenders, we understand how daunting a Court experience can be for someone charged with a criminal offence. Therefore, we work to the best of our capabilities to provide you with all the legal advice that your case may require. With daily appearances in Criminal Courts, we possess the right expertise and bring a wealth of experience to your legal issues. If you or someone you know has been charged with an offence, we are here to support and guide your case.

Book a FREE first consultation now to discuss your case-related matter with us.