Use Carriage Service to menace/harass/offend is listed under section 474.17 of the Criminal Code 1995. The maximum penalty for this offence is 5 years imprisonment. The act states;
(1) A person commits an offence if:
- the person uses a carriage service; and
- 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.
A carriage service is defined by the Telecommunications Act to include ‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’, for instance, telephone or email.
What needs to be proven in court?
For this offence to be proven in court, the prosecution must establish the physical act beyond a reasonable doubt;
- A person used a carriage service, and;
- They did so in a way that is menacing, harassing, or offensive. The test used in court is the ‘reasonable person test’, where the court asks not how the victim felt in the scenario, but if a reasonable person in their place would feel menaced, harassed, or offended.
In addition to establishing the physical act, the prosecution must establish a fault element which speaks to the mindset of the offender (per section 5.1). For this charge, the fault element is recklessness, which is defined in section 5.4 as follows;
- A person is reckless with respect to a circumstance if:
- he or she is aware of a substantial risk that the circumstance exists or will exist; and
- having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
- he or she is aware of a substantial risk that the result will occur and
- having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
What are the possible penalties?
The possible penalties for the finding of guilt include the following:
- Prison sentence
- Intensive Corrections Order (ICO)
- Community Corrections Order (CCO)
- Conditional Release Order (CRO)
- Fine
- Section 10 dismissal of charges
Proving these elements and navigating the court system without making admissions that jeopardise your case is difficult. Brady and Associates Lawyers have 30 years of experience defending clients under this charge, and we can get you the best result possible at a modest price. Contact us today by emailing admin@bradylegal.com.au or calling us on 9545 3273.
Author: Chris Breen
