Del Vecchio v Couchy

[2002] QCA 9

COURT OF APPEAL

de JERSEY CJ
McPHERSON JA
DOUGLAS J

CA No 245 of 2001

JEANNIE ANNE DEL VECCHIO

MELISSA JANE COUCHY (Appellant)

BRISBANE

..DATE 04/02/2002

JUDGMENT

THE CHIEF JUSTICE: On 7 December 2000 the applicant was convicted in the Magistrates Court of having used insulting words in a public place contrary to section 7, subsection (1) paragraph (d) of the Vagrants, Gaming and Other Offences Act 1931.

At about 4.00 a.m. on 21 September in Dickson Street, New Farm, the applicant, in an intoxicated and disoriented state, was approached by the complainant police officer who asked for her name and address. After initially ignoring the request the applicant said to the complainant police officer the words, "you fucking cunt" or to similar effect.

Having heard evidence and submissions, the Magistrate convicted the applicant and expressed comprehensive reasons for his conclusions. He sentenced her to three weeks' imprisonment, substantially, it seems, in view of her lengthy record and continued similar offending despite previous non-custodial penalties.

The applicant appealed to the District Court. Having served seven days of the three week term the applicant was, prior to the hearing of the appeal, released on a recognisance. The learned District Court Judge dismissed the appeal against conviction, but allowed the appeal against sentence, reducing the sentence to the time actually served, while indicating that he would have been inclined himself to order a community-based order, had he been in the position of the Magistrate.

The learned Judge likewise expressed comprehensive reasons for dismissing the appeal against conviction. The applicant now seeks leave to appeal, both in respect of conviction and sentence.

As to conviction, both the Magistrate and the District Court Judge applied the correct test, that is, what is objectively considered to be insulting in accordance with contemporary community expectations. The submission for the applicant was essentially, as I comprehend it, that what the applicant said should have been viewed as no more than uncouth, drunken ranting. But I believe that even allowing for modern licence, the community would generally still regard the use of the words "you fucking cunt" to a female police officer going about her duty, albeit by a drunken person in the early morning, as insulting.

In this case, it fell to the Magistrate to reach a view on contemporary community expectations, and to that exercise he may be taken to have brought to bear a wide experience of life, including substantial regular contact with many members of the community.

The test to be applied in these cases is clearly established and it was apparently applied. No sufficient reason has been advanced to warrant, by a grant of leave, this Court's facilitating a second appeal, and what would amount to a third hearing.

As to sentence, the maximum available penalty was six months' imprisonment. The applicant's past history justified more than a token penalty and there is no sufficient doubt as to the appropriateness of the course taken by the learned District Court Judge to warrant a grant of leave in respect of penalty alone.

The application should, in my view, be dismissed.

McPHERSON JA: I agree.

DOUGLAS J: I agree.

THE CHIEF JUSTICE: The application is dismissed.

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CaseChat Overview and Summary

In the case of Del Vecchio v Couchy, Jeannie Anne Del Vecchio, the appellant, was convicted in the Magistrates Court for using insulting words in a public place, a violation under section 7, subsection (1) paragraph (d) of the Vagrants, Gaming and Other Offences Act 1931. The incident occurred at approximately 4:00 a.m. on 21 September in Dickson Street, New Farm, where Del Vecchio, in an intoxicated state, verbally assaulted a police officer by calling her a "fucking cunt" or similar. Del Vecchio appealed the conviction and sentence to the District Court, which dismissed the appeal against conviction but reduced the sentence to the time already served. Del Vecchio subsequently sought leave to appeal to the Court of Appeal.

The central legal issues addressed by the Court of Appeal were whether the Magistrate and the District Court Judge correctly applied the legal test for determining whether the words used were insulting under contemporary community standards, and whether the sentence imposed was appropriate given the appellant's prior history of similar offenses. The appellant argued that her words, though offensive, should be considered as mere drunken ranting rather than insulting conduct. However, the Court found that the words used were indeed insulting according to community expectations, even allowing for her intoxicated state. Regarding the sentence, the Court considered the appellant's extensive criminal record and found that the District Court Judge's decision to reduce the sentence to the time already served was appropriate.

The Court of Appeal, in its judgment, held that the Magistrate and the District Court Judge had correctly applied the legal test for determining insulting conduct and had adequately considered the contemporary community standards. The Court found no sufficient reason to grant leave for a further appeal, as it would result in a third hearing of the same matter. Consequently, the application for leave to appeal was dismissed. The Court acknowledged the appellant's history of similar offenses but deemed the District Court's reduced sentence as appropriate under the circumstances.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established