Use Of Carriage Service For Sharing of Abhorrent Violent Material

There is a range of offences relating to the use of a carriage service for sharing of abhorrent violent material. These are contained in subdivision H of the Criminal Code 1995 (Cth). The specific offence of removing, or ceasing to host abhorrent violent material is contained in section 474.34 of the Criminal Code 1995 (Cth). This specific offence committed by a person is punishable by a maximum penalty of 3 years imprisonment and/or a fine of 10,000 penalty units.

The Offence of Removing or Ceasing to Host Abhorrent Violent Material

The offence is committed where a person:

• provides a content or hosting service;
• material is available to access or hosted on the service;
• the material is abhorrent violent material; and
• does not ensure the prompt removal or ceasing of hosting of the abhorrent violent material.

A person who commits the offence of removing or ceasing to host abhorrent violent material is liable to a penalty of 3 years imprisonment and/or a fine of 10,000 penalty units.

What must the Police Prove?

In order for a person to be convicted of this offence, the Police must prove that the person:

• provided a content or hosting service;
• that material was available to access or hosted on service;
• the material was abhorrent violent material; and
• they failed to ensure the material was expeditiously removed or the hosting of the material was expeditiously ceased.

What is the definition of Abhorrent Violent Material?

This includes audio, visual and audio visual material that:

• records or streams abhorrent violent conducted between people;
• in all the circumstances is considered offensive by a reasonable person; and
• is produced by a person or two or more people, who are:
• engaged in abhorrent violent conduct; or
• conspire to engage in abhorrent violent conduct; or
• aids, abets, advises, obtains or in any way knowingly conserved in the abhorrent violent conduct; or
• attempting to engage in abhorrent violent conduct.

It includes material even if it has been altered.

What Are Examples Of Abhorrent Violent Conduct?

Abhorrent violent conduct includes:

• a terrorist act;
• murder;
• attempt to murder;
• torture;
• rape; or
• kidnap

It includes conduct even if engaged in outside of Australia.

What is a Content or Hosting Service?

A content service includes social medial or designated internet services. A hosting service also includes social medial, relevant electronic and designated internet services.

What are Possible Defences?

It may be possible to defend the charge by:

• arguing that the alleged offender did not provide a content or hosting service;
• arguing that the material was not available or hosted on the service;
• arguing that the material was not abhorrent violent material;
• arguing that the alleged offender did ensure the expeditious removal or ceasing of hosting of the material.

What court will hear the matter?

As this offence carries a maximum penalty of 3 years imprisonment it is available for the matter to be dealt with in the summary jurisdiction. This means the Local Court in NSW and the Magistrates Court in the ACT. The Commonwealth DPP will have to agree to the matter remaining in the summary jurisdiction of the specific state or territory.  If the CDPP do not consent the matter will proceed to the District Court in NSW and the Supreme Court in the ACT.

If dealt with in the summary jurisdiction the maximum penalty an alleged offender can receive is reduced to 12 months imprisonment and/or a fine of 10,000 penalty units.

Section 20BQ Application – Mental Illness or Intellectual Disability

If the matter remains in the summary jurisdiction of courts in different states and territories, an alleged offender can apply under section 20BQ of the Crimes Act 1914 (Cth) for the charge to be dismissed and for them to be discharged with or without conditions on the basis of mental illness or intellectual disability.

The court will take into account the facts of the case and circumstances of the alleged offender and any other relevant material. The court will only divert an alleged offender from the ordinary criminal procedure if satisfied it is more appropriate to do so.

Penalties

As this is a Commonwealth offence, if a person has entered a plea of guilty or been found guilty they will be sentenced under Commonwealth sentencing laws. Commonwealth penalties on sentence include:

• dismissal without conviction;
• conditional release order;
• fines;
• recognizance release order (like suspended sentences); and
• sentence of imprisonment

The person can also receive other sentence options that are available in the applicable state or territory where the matter is heard. This means for offences in NSW, conditional release orders, community correction order (CCO) and intensive correction orders (ICO) are also available. For offences in the ACT, this means that good behaviour orders, suspended sentences and intensive correction orders are also available sentencing options.

If you require legal advice on using a carriage service for a hoax threat or any other legal matter contact Armstrong Legal on 1300 038 223 or send us an email.