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  • Home Resources & Technical Articles Criminal Offence Topics (A to Z) Offensive Behaviour Offences Offensive Behaviour Offences and Penalties in the Australian Capital Territory (ACT)

    Offensive Behaviour Offences and Penalties in the Australian Capital Territory (ACT)

    Based on the Crimes Act 1900 (ACT), there are some conducts that the Australian Capital Territory classifies as offensive behaviour.

    Primarily, offensive behaviour is a threat to public order and, as such, falls under the category of criminal offences.

    In this article, we will be going into the details regarding offensive behaviour. Consequently, this will include the definition of offensive behaviour, the penalties that it attracts, and possible defences.

    But first, we would have to define some legal terms related to the crime of offensive behaviour.

    If an individual is convicted in an ACT court for an Offensive Behaviour offence, the offence will show up as a disclosable court outcome (DCO) on a criminal history check in the ACT.

    Public Space

    According to Section 210B of the Crimes Act 1900 (ACT), a public space means an unleased public land or any premises that the public can access, whether freely or through payment.

    Examples of public spaces include public libraries, cultural institutions, and educational institutions. Also, this includes public hospitals, commercial vehicles, public parks, and nature reserves.

    Penalty Unit

    According to Section 133 of the Legislation Act 2001 (ACT), a penalty unit is a fine that the court imposes to punish a crime. The value of a single penalty unit can increase or decrease, depending on the offender's entity.

    As of the year 2022, for an individual, a single penalty unit stands at $160, while for an organisation, a penalty unit amounts to $810.

    The Crime of Offensive Behaviour

    According to Section 392 of the Crimes Act 1900 (ACT), it is illegal for a person to disrupt public peace by conducting themself in a riotous, indecent and insulting manner.

    Any individual who engages in such an act may be guilty of offensive behaviour. Based on this section of the law, offensive behaviour attracts a maximum of 20 penalty units.

    Elements of a Crime in the Australian Capital Territory (ACT)

    In a trial for a particular crime, it is the prosecution's responsibility to prove beyond all reasonable doubt the elements of an offence. Failure to convince the court of the presence of these elements can lead to the court dismissing an allegation.

    Firstly, the prosecution will have to prove that the accused intended to commit the crime for the crime of offensive behaviour, and the offender knew the effect of their action.

    Furthermore, there will be a need to show the court that the defendant took certain actions which led to them committing the crime. Also, the prosecution has to convince the court that the 'intention to carry out a crime' and 'committing the crime' concurrently took place.

    Possible Defences to the Charge of Offensive Behaviour

    There are some defences that a person can raise against the charge of offensive behaviours. Some of these defences can lead to acquittal or the court giving a lesser punishment for the crime committed.

    However, if a person is guilty of offensive behaviour, pleading guilty to the charge can go a long way in lessening the penalty for the crime.

    Here are some of the defences an accused can raise in an offensive behaviour trial:

    #1. Mental Impairment

    According to Section 28 of the Criminal Code 2002 (ACT), a person may not be guilty of an offence if they were not in the right state of mind when they committed the crime.

    However, for this defence to hold up in court, there must be a way of providing proof to this claim.

    #2. Duress

    A defendant can claim that they committed the crime of offensive behaviour due to being under threat. However, raising this defence requires the defendant to show the court that they genuinely believed the threat to be serious and their action was a reasonable response to the situation.

    #3. Emergency or Necessity

    To prevent great harm from happening, a person may commit an offence. In such cases, the court may dismiss the accusation of offensive behaviour as the accused acted justifiably.

    Specifically, acting justifiably means any reasonable person in the defendant's position would have taken the same action to avert the danger perceived.

    The Court that Handles the Cases of Offensive Behaviour in the Australian Capital Territory

    The jurisdiction for offences in the ACT is heard in the Magistrates' Court. Summary offences in the ACT typically carry a maximum sentence of two years or less.

    There are primarily two courts in the Australian Capital Territory. These are the magistrate and supreme courts.

    The Supreme Court handles most indictable offences, while the Magistrate Court listens to the less serious offences, including offensive behaviour.

    Importance of Giving Penalties

    There are different reasons why the court gives penalties. There are times when the court gives a sentence to discourage the public from engaging in illegal activity.

    Furthermore, a punishment could ensure that an offender gets the necessary help to prevent them from repeatedly committing a crime.

    Additionally, a court could issue a sentence to denounce or condemn a criminal act publicly. Lastly, a sentence can serve the purpose of maintaining a just system.

    How the Court Weighs the Gravity of an Offence

    Based on some factors, the court can weigh an offence to determine its gravity. The gravity of the offence will dictate how severe the penalties will be.

    One of these factors is the intention of the offender. If the offender had the intention to carry out criminal activity, then the court may decide not to lessen the penalty for the crime they committed.

    Another factor is the consequence of the offender's action. The consequence of the offender's action refers to how much the offender's conduct affected the victim's life.

    Furthermore, the court tries to discover if the offender used a weapon when committing the crime. Consequently, the use of a weapon can make a crime more serious.

    Additionally, the court can weigh the seriousness of an offence by looking at the offender's criminal record. The gravity of the offence can increase if the offender has committed a crime similar to the one for which they face charges.

    Bottom Line

    The crime of offensive behaviour encompasses a wide range of misconduct. A person might be charged with the crime of offensive behaviour without having proper knowledge of the law they broke.

    Based on this reason, it is advisable to seek legal aid. Consequently, this can ensure that a person gets the best result possible, including not having a criminal record.

    Will an Offensive Behaviour Offence in the Australian Capital Territory (ACT) show up on a criminal history check certificate?

    If an individual is found guilty of an offensive behaviour offence in an ACT Court, the offence will show up as a disclosable court outcome (DCO) on the results of their criminal history check.

    Individuals can obtain a police check via the Australian National Character Check - ANCC® website.

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