Using a carriage service to harass or menace is an offence in contravention of section 474.17 of the Commonwealth Criminal Code contained in schedule one of the Crimes Act 1914 (Cth).
A person commits an offence under the provision if they:
- Use a carriage service; and
- The person uses the carriage service in a way (whether by the method of use or the content of a communication, or both) that a reasonable person would regard as being, in all the circumstances, menacing, harassing or offensive.
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This means that if you are charged with an offence of using a carriage service to harass or menace, then a Court will consider the entirety of the circumstances of your particular case, and make a decision as to whether a reasonable person would regard your particular conduct as amounting to menacing, harassing or offensive conduct.
What is a carriage service?
A carriage service has been defined as any service that is capable of carrying a communication “by means of guided and/or unguided electromagnetic energy”
Some common examples include:
- SMS messaging or iMessaging via mobile phone;
- Communications passed through Facebook, Twitter or Instagram (whether via computer or smartphone);
- Emails; and
Meaning of “harass” and “menace”
As mentioned above, if you are charged with an offence of using a carriage service to menace or harass then a Court will view the totality of your conduct and make a decision as to whether an ordinary, reasonable person would regard that particular conduct as being menacing, harassing or offensive.
As such, there is no complete definition as to what amounts to “harassing” or “menacing” conduct. Each case will be decided on its own merits.
However, in relation to what may constitute harassing conduct, it was held in Daly v Medwell (1985) 40 SASR 281, that “the making of seven telephone calls to the home of an ex-employee with whom he [the accused] had no real business and the failure to speak at all when those calls were answered, to my mind, viewed against the backdrop of the relationship and motive which it provides, leads inevitably to the conclusion the calls were made for the purpose of harassment”
In relation to what may constitute menacing conduct, it was held in Holland v Cocks (NSWSC, Hidden J, 23 May 1997, unreported) that “It is clear the word menace means a threat and should be construed liberally so as to encompass more than the threat of physical violence”.
What actions may constitute harassing or menacing conduct?
Examples of using a carriage service to menace or harass could include:
- Dialling someone from a private number and yelling insulting or threatening words to the person that answers the phone;
- Sending abusive, rude, or derogatory text, Facebook, or Instagram messages to a former ex-partner and/or friend; and
- Making a verbal or written threat to someone regarding their property, for example, saying to someone that you were going to steal their phone or damage their property.
Sending Pornographic Images via carriage service
An offence in contravention of s. 474.17 is aggravated if the material that has been sent from one person to another, via use of a carriage service, involved private sexual material (s. 474.17A).
Private sexual material can include photographs or videos that depicts a person who is, or appears to be, over the age of 18 years engaging in a sexual pose or involved in sexual activity.
Will I get a criminal record and will I go to jail?
Upon conviction for an offence in contravention of s. 474.17, the maximum penalty that can be imposed is a term of imprisonment of 3 years.
Upon conviction for an offence in contravention of s. 474.17A, the maximum penalty that can be imposed is a term of imprisonment of 5 years.
Courts treat these matters extremely seriously, particularly if the offence has been committed within the context of a current or former domestic relationship. If you have been charged with an offence of using a carriage service to harass or menace then you should contact one of our experienced criminal lawyers to discuss your case.
For the full range of penalties that can be imposed, see our Sentencing Options page for Commonwealth Offences.