With current government’s attempting to enter into the sphere of Policing what people say and remarks especially within the context of todays digital age and communication being integral to our everyday lives, this offence is more common than ever. One such offence is the improper use of a carriage service, which is a serious criminal charge under Australian law, and its use by Police is ever expanding beyond traditional concepts of threats to others.
A carriage service refers to any technology or platform used to transmit communications. This includes both guided media, such as landline telephones and cable internet, and unguided media, such as mobile phones, wireless internet, and social media platforms. Common examples of carriage services include SMS, phone calls, emails, and social media messaging apps like Facebook Messenger, Instagram, Snapchat, and TikTok.
The broad definition of a carriage service ensures that the law covers most modern forms of communication, reflecting the evolving nature of technology and its role in our daily lives.
The Offence: Using a Carriage Service to Menace, Harass or Cause Offence
Under section 474.17(1) of the Criminal Code Act 1995 (Cth), a person commits an offence if they use a carriage service in a way that reasonable persons would regard, in all the circumstances, as menacing, harassing, or offensive. The idea of what a reasonable person is, is meant to be the common person although, this person does not have to be present. This offence is applicable across Australia, including NSW, and carries significant penalties.
- Menacing: Communications that convey threats or intimidation likely to cause fear or apprehension. This can include threats to harm, expose private information, or ruin someone’s reputation.
- Harassing: Repeated unwanted contact that disturbs or torments the recipient. Even a single communication can be considered harassment depending on its content, timing, and circumstances.
- Offensive: Conduct that is grossly or seriously offensive, assessed against the standards of a reasonable adult. It must go beyond mere insult or hurt feelings.
Using a Carriage Service to Menace, Harass or Cause Offence: Prosecution Must Prove
To secure a conviction, the prosecution must establish the following elements beyond a reasonable doubt:
- Use of a Carriage Service
The accused must have used a carriage service, such as sending a message, making a call, or posting on social media. Proving this often involves evidence like device attribution, account ownership, IP records, SIM card details, screenshots, and metadata. - Objective Characterisation of Conduct
The conduct must be objectively menacing, harassing, or offensive. Courts assess this based on what reasonable persons would consider in all the circumstances, taking into account factors such as:- Relationship history
- Prior communications
- Frequency and timing of contact
- Content and tone of the communication
- Any threats (express or implied)
- Persistence after being asked to stop
Penalties for the Offence
The penalties for using a carriage service to menace, harass, or offend are severe. The maximum penalty depends on the court in which the matter is heard:
- Local Court: Maximum penalty of two years imprisonment.
- District Court: Maximum penalty of three years imprisonment.
In addition to imprisonment, courts may impose other penalties, including:
- Fines
- Good behaviour bonds
- Community service orders
- Suspended sentences
- Intensive correction orders
- Home detention
In some cases, the offence may be dealt with under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which allows for no conviction to be recorded, no penalty, and no criminal record.
Defences to the Charge
Several defences may be available to individuals charged with this offence, including:
- Duress
The accused acted under coercion or threats from a third party, such as blackmail or threats of violence. - Necessity
The accused believed their actions were necessary to prevent harm, injury, or loss. - Self-Defence
The accused acted to protect themselves, their property, or their liberty. - Mental Health
If the accused was mentally impaired or unfit at the time of the offence, charges may be dropped under the Mental Health Act 2007 (NSW). - Reasonable Mistake of Fact
The accused genuinely believed their conduct was lawful or appropriate under the circumstances. - Factual Dispute
The accused disputes the content, context, or authorship of the communication.
When defending against this charge, it is crucial to preserve evidence, such as complete message chains, timestamps, and metadata. Cropped screenshots or missing context can weaken the prosecution’s case. Additionally, identity disputes, such as claims of shared devices or hacked accounts, can be pivotal in challenging the allegations.
Apprehended Violence Order (AVO)
It is very common for these charges to be accompanied with an Apprehended Violence Order (AVO). An AVO is a civil protective order made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) issued more commonly by Police or the court aimed at protecting a person who may fear violence, intimidation, stalking, harassment, or certain property/animal-related harm from another person. The order operates by imposing prohibitions and restrictions on the defendant’s conduct toward the protected person.
In the event that an AVO is present and the offence of use carriage service is committed it is likely that a person will be charged with both use carriage service to menace, harass, or offend and/or a Contravene AVO which has more serious implications.
The offence of using a carriage service to menace, harass, or offend is a serious matter with significant legal consequences. If you or someone you know is facing such charges, it is essential to seek expert legal advice. At Catron Simmons Lawyers, our experienced criminal defence team is dedicated to providing tailored advice and representation to achieve the best possible outcome for our clients. Contact us today to discuss your matter and protect your rights.