This is a charge that the police will often use to allege that you constantly contact or attempt to contact someone (the victim) by mobile phone. The police will usually use the evidence on the victim’s mobile phone and try and establish that you sent the messages, or made the calls.
They will usually get your phone records from your service provider (for example optus or telstra) to support what the victim says is the threatening/harrassing communications.
If you are charged with this offence, it is important that you stop contacting, or attempting to contact the victim immediately. It is likely that the police will try to obtain an AVO against you to protect the victim.
It is quite often the case that the police case against you will be based on lies and exaggeration, and overzealous victims can be caught out in cross examination.
Plead not guilty
In order to be convicted of this offence, the police must prove beyond a reasonable doubt that:
- You used a carriage service and
- You did so 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.
If any of the above elements cannot be proven beyond reasonable doubt, then you will be found not guilty of the offence.
Our experienced criminal lawyers will advise you of your prospects of successfully defending any charge brought against you and fight to have you found not guilty of the offence.
Of relevance to this offence is that:
- “Harass” typically means to trouble or annoy by a repeated course of conduct. However, a single telephone call may be harassment depending on the contents of the words uttered, or the time and circumstances in which the call was made even if words were not uttered.
- “Menace” means to cause a normally courageous person to feel apprehensive for their safety because of the call or calls. It isn’t necessary for a call to threaten actual harm for it to be menacing. Nor is it necessary for the communication to be made directly to the person menaced. As long as the caller intends the communication to be communicated to the ultimate recipient, it is enough.
If you agree with what the police are alleging against you, the way to get the best result is often to plead guilty as it demonstrates remorse and contrition as well as meaning that you will be entitled to a discount on your sentence.
Alternatively, it may be the case that one of our experienced solicitors can negotiate with prosecutors for you to plead guilty to a less serious charge.
The maximum penalty for this offence is two years imprisonment in the Local Court. If the matter is heard in the District Court, the maximum penalty is 3 years imprisonment.
However, Use carriage to menace is an offence that may be dealt with pursuant to section 10 of the Crimes (Sentence Procedure) Act, meaning no conviction will be recorded, there is no other penalty and you will have no criminal record. To find out more about a section 10, click here.
Generally, penalties that a court can impose for any criminal offence in NSW are: