Use Carriage Service For a Hoax Threat

The offence of ‘Use Carriage Service For a Hoax Threat’ is contained at Section 474.16 of the Criminal Code Act 1995 (“the Act”). The maximum penalty for a natural person is 10 years imprisonment and/or fine of $66,000.00 and the maximum penalty for an incorporated body is a fine of $330,000.00.

What is Using a Carriage Service For a Hoax Threat?

Section 474.16 of the Criminal Code Act 1995 makes it an offence for a person or incorporated body (a company) to use a carriage service to make a hoax threat. This offence criminalises the making of fake, false, prank or hoax calls to any person where the caller has an intention of inducing a false belief that an explosive, or dangerous or harmful substance has been or will be left in any place. 

The following acts constitute using a carriage service for a hoax threat:

• Calling a school or university and advising that there is a bomb on the premises, 
• A person sends an email to a government office claiming that a package delivered to the mailroom contains a biological agent,
• A social media personality making a post on social media that there is an explosive device in a public place for engagement or clout.

What Must Be Proven?

For a person to be found guilty of using a carriage service for a hoax threat the prosecution must prove each of the following matters beyond a reasonable doubt:

• You, 
• “Intended” to “use a carriage service”, 
• With the intention of inducing a false belief that an explosive, or a dangerous or harmful substance or thing, has been or will be left in any place. 

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 or intending to induce a false belief) if he or she means to engage in that conduct. 

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 where the matter will be heard and finalised in the Local Court. 

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:

The following defences may be available for using a carriage service for a hoax threat:

• The defendant was not the person who used the carriage service – i.e. another person used the defendant’s carriage service when making the hoax threat. 
• The defendant did not intend to use a carriage service.
• The defendant did not have the intention of inducing the false belief that an explosive, or a dangerous or harmful substance or thing, has been or will be left in any place.
• Duress.
• Necessity. 

Common Questions:

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 for a hoax threat:

• 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 for a hoax threat 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 for a hoax threat 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 10 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 public disorder offences and used a carriage service to make a hoax threat against a school which caused the school to lock down and the students and staff to fear for their lives would be treated more harshly on sentence and is more likely to receive a gaol term than a first time young offender who used a carriage service to make a prank call to a friend that there was a stink bomb in the backyard. 

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