Dealing with nuisance behaviour: Logical alternatives to traditional sentences

1
Dealing with nuisance behaviour Logical
alternatives to traditional sentences

• Dr Tamara Walsh
• T.C. Beirne School of Law, University of
  Queensland
• Rights in Public Space Action Group

2
Nuisance behaviour and offensiveness

• These offences are not available to ensure
  punishment of those who differ from the majority
  or breach the rules of courtesy or good
  manners.
• Ball v McIntyre 1966 9 FLR 237
• The reasonable person is not easily shocked, but
  is largely tolerant (if not permissive),
  understanding, secular and contemporary in
  his/her reactions.
• Norley v Malthouse 1924 SASR 268 Ball v
  McIntyre 1966 9 FLR 237
• Pell v Council of the Trustees of the National
  Gallery 1998 2 VR 391
• These offences should be given a confined
  operation are aimed at the protection of people
  are aimed at preventing behaviour that may
  seriously disturb public order.
• These offences are only activated when behaviour
  is serious enough to attract the attention of
  the criminal law.
• Coleman v Power 2004 220 CLR 1

3
Public space law in Queensland

• April 2004
• New offence of public nuisance
• Where a person behaves in a disorderly,
  offensive, threatening or violent way (including
  using offensive, obscene, indecent, abusive or
  threatening language)
• June 2005
• Summary Offences Act 2005 (Qld) retained
• public nuisance
• begging
• being drunk in a public place despite s210
  Police Powers and Responsibilities Act 2000 (Qld)
• April 2006
• Police Powers and Responsibilities and Other
  Legislation Amendment Act 2006
• Expansion of move-on powers state-wide

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Public nuisanceRate of prosecution

• Steady increase in the number of prosecutions for
  public nuisance over 2004/05

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Public nuisanceSelective enforcement?
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Public space offencesSelective enforcement?

• Sometimes the police would come down on you all
  the time just because you were homeless. They
  shouldnt be able to pick on you just because you
  havent got shoes or a wallet or youre not
  clean. Its not your fault.
• Its the way they look at you. If you are dark
  with a bag, you get picked out of the crowd.
• We people get picked on all the time. To tell
  you the truth, Im glad Im not a black fella
  poor blokes.
• Most people who drink in public space dont
  have anywhere else to drink. Its because of
  their financial circumstances.

7
Public nuisanceSentencing outcomes
8
Public nuisanceFines

• Average fine amounts doubled between February
  2004 and July 2005
• Average fine amounts July 2005
• Brisbane - 212 with 2 months to pay
• Townsville - 233 with 2.4 months to pay
• Cannot be paid by social security recipients
• Newstart - 252/week 71 poverty line
• Youth Allowance - 217/week 60 poverty line
• Default periods of imprisonment set in 84 of
  cases (average of 4 days)

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AlternativesDiversion by police

• Alternatives to arrest
• caution
• referral to a social or welfare service
• move-on?
• Imposing additional requirements for arrest
• member of the public must make a complaint
• must be reasonably necessary to ensure public
  safety

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AlternativesDiversionary schemes at court

• Discharging low-level offenders
• Criminal Justice Diversion Program, Victoria
• Magistrates may divert low level offenders away
  from the court system
• Impose restitutive and rehabilitative tasks,
  including attendance at welfare/treatment
  agencies, writing letters of apology, making
  undertaking voluntary work
• Presence of court liaison officers to recommend
  alternative responses and make referrals
• Homeless Persons Court Diversion Pilot Program,
  Brisbane

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AlternativesStatutory defences

• Make a statutory defence of reasonable excuse
  available
• Eg. Summary Offences Act 1988 (NSW) ss4, 4A
• Create a vulnerable persons provision
• ie. a police officer must ordinarily caution or
  refer on a vulnerable person rather than
  arresting them

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AlternativesFair fines

• Penalties and Sentences Act 1992 (Qld) section 48
  If a fine is imposed, court must take means,
  and the likely burden the fine would impose, into
  account.
• Could be formalised by
• Calculation tables
• Day/unit fine system
• Give fine enforcement agencies the discretion to
  waive fines, in the interests of justice, where
  they cannot be paid.

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AlternativesOther sentencing options

• Expanded use of community service
• Change definition of community work to include
  attendance at rehabilitative programs
• Akin to intervention program order (New South
  Wales) or community-based order (Victoria,
  Western Australia)
• Expanded use of conditional releases
• ie. where no conviction is recorded and the
  person is released on the condition that they
  attend a treatment/welfare service, etc.

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AlternativesSpecialty courts

• Special Circumstances Court, Melbourne
• Defendants identified as having special
  circumstances (eg. homelessness,
  cognitive/psychological impairment, drug/alcohol
  addiction)
• Most likely outcome unconditional dismissal,
  adjournment with or without conditions
• Special Circumstances Court, Brisbane (pilot)

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Rights in Public Space Action Group

• We have no money, no food, no nothing. Let the
  Ministers and the police experience that for one
  day to get a dose of reality.