Use Carriage Service To Menace / Harass / Offend

The offence of ‘Use Carriage Service to Menace / Harass / Offend’ is contained at Section 474.17 of the Criminal Code Act 1995 (“the Act”). The maximum penalty for a natural person is 5 years imprisonment and/or fine of $33,000.00 and the maximum penalty for an incorporated body is a fine of $165,000.00.

What is Using a Carriage Service to Menace / Harass / Offend?

Section 474.17 of the Criminal Code Act 1995 makes it an offence for a person or incorporated body (a company) to use a carriage service to menace (threaten), harass or offend another person.

The following acts constitute using a carriage service to menace / harass / offend:

• Making repeated calls or sending repeated messages to an ex-partner after being told to stop. 
• Making repeated phone calls to Police, NSW Ambulance or NSW Fire and Rescue Service and hanging up.
• Sending an email to another person threatening them or using language that is threatening or intimidating such as, “I know where you live and I’m coming for you tonight”. 
• Calling, texting, sending messages (whether messenger, Instagram, snapchat) that contain abusive language, inappropriate, graphic, violent and/or sexual content. 
• Trolling or posting derogatory or graphic comments on a social media Tribute page to a deceased person. 

What Must Be Proven?

For a person to be found guilty of using a carriage service to menace / harass / offend the prosecution must prove each of the following matters beyond a reasonable doubt:

• You, 
• “Intended” to “use a carriage service”, 
• In a way that reasonable persons would regard in all the circumstances as being “menacing”, “harassing” or “offensive”.

If the prosecution does not prove every single one of the above elements, you will be found not guilty. 

Definitions:

A person is taken to not “use a carriage service” at Section 473.5 of the Act where:

• the person is a carrier and, in engaging in that conduct, is acting solely in the person’s capacity as a carrier; or
• the person is a carriage service provider and, in engaging in that conduct, is acting solely in the person’s capacity as a carriage service provider; or
• the person is an internet service provider and, in engaging in that conduct, is acting solely in the person’s capacity as an internet service provider; or
• the person is an Australian hosting service provider and, in engaging in that conduct, is acting solely in the person’s capacity as an Australian hosting service provider.

A “carriage service” is defined in the Telecommunications Act 1997 to mean “a service for carrying communications by means of guided and/or unguided electromagnetic energy”.

The mental element of “intention” is defined under Section 5.2 of the Act to apply to conduct (using a carriage service) if he or she means to engage in that conduct. 

Section 473.4 of the Act provides guidance on determining whether material is “offensive”. The matters to be taken into account in deciding whether reasonable persons would d regard particular material or a particular use of a carriage service as being in all the circumstances offensive include:

• The standards of morality, decency and propriety generally accepted by reasonable adults; and
• The literary, artistic or educational merit (if any) of the material; and
• The general character of the material (including whether it is of a medical, legal or scientific character).

The Act does not provide a definition of “menace/menacing” for this offence. Case law or precedent can assist in providing a definition of menacing, including in Holland v Cooks (NSWSC, Hidden J 23 May 1997, unreported) held that “it was clear the word menace means a threat and should be construed liberally so as to encompass more than the threat of physical violence”. 

Similarly, the Act does not provide a definition of “harass/harassing” for this offence. Harass typically means behavior (whether individual or a pattern of behaviour) that troubles, annoys, distresses or disturbs another person. 

Which Court Will Hear the Matter?

This offence is an indictable offence which under the Criminal Procedure Act 1986 prescribes that the matter is to be dealt with on indictment in the District Court unless the parties agree to summary jurisdiction. 

In practice, these offences are most commonly heard and dealt with in the Local Court under summary jurisdiction. When finalising in the Local Court the jurisdictional limit of a maximum penalty of 2 years imprisonment applies. 

Possible Defences to Using a Carriage Service To Menace / Harass / Offend:

The following defences may be available:

• You were not the person who used the carriage service to send the communication – i.e. someone else took your device and sent the communication from your account without your knowledge or permission,
• You did not intend to use a carriage service,
• A reasonable person in all the circumstances would not regard the use of the carriage service as being “menacing”, “harassing” or “offensive”.
• Duress.
• Necessity. 

Common Questions About Using a Carriage Service To Menace / Harass / Offend:

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely. 

In NSW, a court can impose any of the following penalties for a charge of using a carriage service to menace / harass / offend:

• Gaol Sentence
• Section 20(1)(a) Recognizance Order
• Intensive Corrections Order (ICO)
• Section 20(1)(b) Conditional Release Order
• Community Corrections Orders (CCO)
• Fine
• Section 19B(1)(d) Recognizance Order
• Conditional Release Order with Conviction 
• Section 19B(1)(c) Dismissal
• Conditional Release Order without Conviction
• Section 10(1)(a) Dismissal

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for using a carriage service to menace / harass / offend might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of violence can completely rule out certain career paths such as teaching and a range of government employment options. Violent offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol?

Whether a person will go to gaol for an offence of using a carriage service to menace, harass or offend depends very much on the individual circumstances of their matter. It may also depend on whether the charge is finalised in the Local Court or the District Court, with the District Court having a longer gaol term available as a sentencing option (up to 5 years) compared to the Local Court (up to 2 years in the case of one sequence or 3 years in the case of multiple offences). For example, someone who has an extensive record of domestic violence and used a carriage service to send thousands of violent, abusive and sexually graphic messages to an ex-partner over a series of months would be treated more harshly on sentence than a person who made a handful of unwanted phone calls to another person in a short period of time. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.