Spotlight: Use carriage service to menace, harass or cause offence
Spotlight: Use carriage service to menace, harass or cause offence
Carriage service offences are Commonwealth offences. There are a large number of offences that are categorised as carriage service offences but the most commonly prosecuted is Use Carriage Service to Menace, Harass or Cause Offence.
This offence carries a maximum penalty of 3 years imprisonment.
Let’s take a closer look. Scroll down for:
What the prosecution has to prove
What acts might constitute an offence
Defences available, and
Penalties that might be imposed.
What does the prosecution have to prove?
The offence provision is:
A person commits an offence if:
(a) The person uses a carriage service; and
(b) The person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
In order to prove their case, the prosecution has to prove:
The person used a carriage service;
They intended to do that;
A reasonable person would regard the use as being, in all the circumstances, menacing harassing or offensive;
The person was reckless about that fact.
So what does that all mean? Let’s break it down.
1. The person used a carriage service
First things, first, we need to look at what a carriage service is. A carriage service means “any service for carrying communications by means of guided and/or unguided electromagnetic energy”. Right, so what does that actually mean?
The “service” can include a fixed or mobile telephone service, an internet service or an intranet service.
The notion of “communications” is really wide and includes a communication in any form or combination of forms. What this means is that the communication could be words, pictures, videos or a combination of those things. It can even include emojis.
“Guided electromagnetic energy” includes the use of wire, cable and waveguide amongst other means. “Unguided electromagnetic energy” means radiocommunication.
At its simplest, all of this means the use of:
Telephone – fixed or mobile
Internet – including the use of apps and over all types of internet connection
Radio communications – for instance UHF CB radio.
2. Intention to use the carriage service
The person needs to have intended to use the carriage service. Intention is defined in the Criminal Code to mean that the person means to do it.
3. A reasonable person would regard the use as being menacing, harassing or offensive
The prosecution has to prove that the communication would be considered by a reasonable person as being, either:
Menacing, or
Harassing, or
Offensive.
The prosecution doesn’t have to choose one of those three, but proof of one will be enough for this element. Menacing and harassing is not defined in the legislation. Offensive isn’t defined in the legislation either, but it says that the Court must take into account these things to decide whether a reasonable person would regard the material as offensive:
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 if it’s of medical, legal or scientific character).
Different tests apply if the material is classified as being private sexual material.
4. The person sending the communication was reckless about the material being considered menacing or harassing or offensive
For this offence, recklessness has a defined meaning in the legislation, which is:
The person is aware of a substantial risk that the material is menacing, harassing or offensive according to the standards of a reasonable person, and
Having regard to the circumstances known to the person, it is unjustifiable to take the risk.
What does this mean in practice? It means that the person has to be aware that there is a substantial (or, pretty big) risk that an ordinary person would find the material to be menacing, harassing or offensive, and despite having that awareness, they send the material anyway.
What actions might this offence involve?
Some examples of the types of conduct courts have held to be menacing, harassing or offensive are:
Sending text messages and messages in Apps pressuring a person to send explicit photographs of themselves
Making threats of violence over the telephone (although these actions can also constitute the more serious offence of use carriage service to make a threat)
Forwarding pornographic images by email
Repeatedly telephoning or messaging an ex-partner.
The range of acts that might constitute this offence is very wide. This is particularly so because the court must look at the surrounding circumstances of the way in which the communication is sent.
Penalties
The maximum penalty for this offence is 3 years imprisonment.
Where the matter is prosecuted and finalised in the Local Court, the jurisdictional limit is 12 months imprisonment. In order for this offence to be finalised in the Local Court, both the prosecutor and the defendant have to consent.
Courts look upon this type of offence very seriously. The range of sentences imposed for this offence is quite broad given the range of conduct that it can include.
Have you been charged with a carriage service offence? Click on the button below to make a telephone appointment to discuss your matter with one of our solicitors at KingstonFox Lawyers.
The above article is general information only and does not constitute legal advice. If you’ve been charged, you should contact us to obtain advice specific to your matter.
