Obscene, Indecent, Threatening Language and Behaviour in Public

– section 17 of the Summary Offences Act 1966
Threatening in Public
This charge is laid in situations where a person, while in a public place or within the view or hearing of any person being in or passing by a public place, uses obscene, indecent or threatening language or engages in obscene, indecent or threatening behaviour.
Examples of Obscene, Indecent, Threatening Language and Behaviour in Public
  • Mooning (displaying one’s buttocks) at a public football game.
  • Streaking (running naked across the playing field) during a public football game.
  • Graffitiing a public wall with pornographic imagery.
Questions in cases like this
  • Was the language or behaviour obscene, indecent or threatening?
  • Was the language or behaviour in a public place?
  • Was the language or behaviour within earshot or eyeshot of someone who was in a public place?
What are some of the possible defences to Obscene, Indecent, Threatening Language and Behaviour in Public?

Defences to this charge are often based on an element of the offence not being made out. These defences include:

  • The behaviour or language was not in a public place or within eyeshot or earshot of a member of the public who were themselves in a public place.
  • The behaviour or language was not obscene, indecent or threatening.

Other defences to this charge include duress, wrongful identification and mental impairment.

Maximum penalty and court that deals with this charge

The maximum penalty for this offence depends on how many times the accused person has previously been found guilty of the charge.

First offence
For a first offence, this offence carries a maximum fine of 10 penalty units (a $1611.9 fine) or a maximum of 2 months imprisonment, or both.1

Second offence
For a first offence, this offence carries a maximum fine of 15 penalty units (a $2417.85 fine) or a maximum of 3 months imprisonment, or both.2

Third or subsequent offence
For a first offence, this offence carries a maximum fine of 25 penalty units (a $4029.75 fine) or a maximum of 6 months imprisonment, or both.3

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.4 As such, the maximum fine for this offence is liable to change.

This charge is heard in the Magistrates’ Court.

As with any criminal offence, whether or not someone should plead guilty to this charge depends on the specific features of their case.

What is the legal definition of Obscene, Indecent, Threatening Language and Behaviour in Public?

The legal definition for this offence is:5

  1. Any person who in or near a public place or within the view or hearing of any person being or passing therein or thereon—
      1. sings an obscene song or ballad;
      2. writes or draws exhibits or displays an indecent or obscene word figure or representation;
      3. uses profane indecent or obscene language or threatening abusive or insulting words; or
      4. behaves in a riotous indecent offensive or insulting manner—

    shall be guilty of an offence.

  • 1A. For the purposes of subsection (1)(d), behaviour that is indecent offensive or insulting includes behaviour that involves a person exposing (to any extent) the person’s anal or genital region.

Call Doogue + George

Legislation

The relevant legislative provision for Obscene, Indecent, Threatening Language and Behaviour in Public is section 17 of Summary Offences Act 1966 (Vic) (the Act).

Elements of the offence

The police must satisfy two elements to satisfy this charge:

  1. The accused person was in or near a public place or within eyeshot or earshot of another person in a public place;
  2. The accused person engaged in obscene, indecent or threatening language or behaviour.

Element 1: The accused person was in or near a public place or within eyeshot or earshot of another person in a public place
To satisfy the first element of this offence the accused person must be in a public place or within eyeshot or earshot of another person who is in a public place.

‘Public place’ is defined in the Act as:6

  1. any public highway road street bridge footway footpath court alley passage or thoroughfare notwithstanding that it may be formed on private property;
  2. any park garden reserve or other place of public recreation or resort;
  3. any railway station platform or carriage;
  4. any wharf pier or jetty;
  5. any passenger ship or boat plying for hire;
  6. any public vehicle plying for hire;
  7. any church or chapel open to the public or any other building where divine service is being publicly held;
  8. any Government school or the land or premises in connection therewith;
  9. any public hall theatre or room while members of the public are in attendance at, or are assembling for or departing from, a public entertainment or meeting therein;
  10. any market;
  11. any auction room or mart or place while a sale by auction is there proceeding;
  12. any licensed premises or authorised premises within the meaning of the Liquor Control Reform Act 1998;
  13. any race-course cricket ground football ground or other such place while members of the public are present or are permitted to have access thereto whether with or without payment for admission;
  14. any place of public resort;
  15. any open place to which the public whether upon or without payment for admittance have or are permitted to have access; or
  16. any public place within the meaning of the words “public place” whether by virtue of this Act or otherwise.

Element 2: The accused person engaged in obscene, indecent or threatening language or behaviour
The second element of the offence is satisfied if the accused engaged in obscene, indecent or threatening language or behaviour. The Act lists the following language or behaviour as obscene, indecent or threatening:7

  1. singing an obscene song or ballad;
  2. writing or draws exhibits or displays an indecent or obscene word figure or representation;
  3. using profane indecent or obscene language or threatening abusive or insulting words; or
  4. behaving in a riotous indecent offensive or insulting manner.

The Act specifies that mooning, streaking or exposing the genital or anal region all fall within the ambit of obscene, indecent or threatening behaviour.8

“Can they prove that the language or behaviour was obscene, indecent or threatening?”

Whether particular language or behaviour is deemed ‘obscene, indecent or threatening’ will evolve with contemporary social standards. For example, certain words might have been taboo in public when the Act was first enacted and be used in everyday speech today.

Sentencing in the Magistrates’ Courts

Magistrates' CourtFrom 1 July 2013 to 30 June 2016, the Victorian Magistrates’ Courts heard a total of 1,886 cases (2,050 charges) of Uses Indecent Language in a Public Place section 17(1)(c) of Summary Offences Act 1966 (Vic). Most of these cases resulted in financial penalties (36.6%) however there were other sentencing options imposed:

  • Adjourned Undertaking/Discharge/Dismissal – 21.7%
  • Community Correction Order – 21.5%
  • Imprisonment – 14.5%
  • Wholly Suspended Sentence – 4.7%
  • Partially Suspended Sentence – 0.7%
  • Youth Justice Centre Order – 0.2%
  • Other – 0.1%

Of those who were fined, the majority were fined between $500 and $1,000 (31.5% for aggregate) and less than $500 category (12.4% for non-aggregate). The heaviest fine imposed was between $4,000 and $5,000 (0.1% for aggregate).

Of those who were sentenced to prison, 0.4% was given a term of imprisonment greater than 36 months (the longest term imposed for this offence). The majority however were sentenced less than 3 months imprisonment (40.9%).9

For the offence of Behave in a Riotous, Indecent or Offensive Manner in a Public Place section 17(1)(d) of the Summary Offences Act 1966 (Vic), a total of 1,638 cases (1,742 charges) were heard in the Magistrates’ Courts within the same period. Most of these cases also resulted in fines (34.9%) but various other sentencing options were also imposed:

  • Adjourned Undertaking/Discharge/Dismissal – 23.6%
  • Community Correction Order – 21.4%
  • Imprisonment – 14.8%
  • Wholly Suspended Sentence – 4.0%
  • Partially Suspended Sentence – 0.9%
  • Youth Justice Centre Order – 0.4%
  • Other – 0.1%

Of the fines imposed, the highest was between $5,000 and $10,000 (0.2% for aggregate). Most of those who were fined were fined between $500 and $1,000 (31.5% for aggregate and 12.8% for non-aggregate). The longest prison term imposed was between 24 and 36 months (0.4% of those who were sentenced to imprisonment) although the majority were sentenced to less than 3 months imprisonment (41.2%).10

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.11

Case studies related to Obscene, Indecent, Threatening Language and Behaviour in Public
Other important resources

 



[1] Summary Offences Act 1966 (Vic), s 17.
[2] Summary Offences Act 1966 (Vic), s 17.
[3] Summary Offences Act 1966 (Vic), s 17.
[4] See http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/.
[5] Summary Offences Act 1966 (Vic), s 17.
[6] Summary Offences Act 1966 (Vic), s 3.
[7] Summary Offences Act 1966 (Vic), ss 17(1) and 17(1A).
[8] Summary Offences Act 1966 (Vic), s 17.
[9] SAC Statistics – Summary Offences Act 1966 (Vic) : s 17(1)(c) – uses indecent language in a public place < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/7405_17_1_c.html >
[10] SAC Statistics – Summary Offences Act 1966 (Vic) : s 17(1)(d) – behave in a riotous, indecent or offensive manner in a public place < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/7405_17_1_d.html >
[11] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >