Offensive language in or near a school or public place – s 4A Summary Offences Act 1988

This has been defined by Justice O’Brien in the Victorian Supreme Court case, Worchester v Smith [1951] as follows:

• [It] must be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.”

A reasonable person has been defined (in obiter) by Justice Kerr in Ball v McIntyre (1966) as:

• ‘Reasonably tolerant and understanding and reasonably contemporary in his reactions.’  So someone who is not ‘thin-skinned.’

NB: Kerr makes it clear that his decision refers to the precise spontaneous conduct displayed in this case.

It follows that courts will examine the context that the words were used in, as well as a range of other factors to determine whether language is offensive.

Section 3 of the Act broadly defines this as a place or part of a premises open to the public, or is used by the public.

This definition captures locations such as beaches or parks, as well as places that the public may access.

The maximum penalty for this offence is:

•  6 penalty units ($660); or
• a community correction order (“CCO”) – 100 hours maximum.

So, if the maximum penalty is not a fine, then a CCO is the maximum penalty.

Please note that the most serious cases attract the maximum penalty.

This option is recommended only where you accept that you:

• used offensive language;
• in or near a public place or a school.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

• A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court exercises a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction.
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
• Community Corrections Orders (“CCO”)
  • An example of a CCO is performing service within the community.

To prove this offence, the Prosecution must establish beyond a reasonable doubt that you:

• used offensive language;
• in or near a public place or a school.

If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then the court must find you not guilty.

Defences:

• A ‘reasonable person’ would not have been offended.
• Intention to cause offense was not present.
• Offensive language was never uttered.
• The offence did not occur in or near a public place or a school.
• Reasonable Excuse: See s 4(3) of the Act.