The explosion of technology and the expansion of our digital lives has benefited humans greatly. We can now keep in touch with friends and family who live far away, work remotely, and have every part of our lives available at the click of a button. But the negative side of our newfound reliance on digital technology is that our privacy, anonymity and even peace of mind can be invaded and attacked through carriage services like phones or apps like Facebook.
The ability for people to harass, menace, offend and otherwise intimidate others from almost anywhere, and through many different mediums, has created a hike in cyberbullying and online threats- conduct which you can be held criminally responsible for. These evolving technologies and the subsequently evolving crimes have created problems for law enforcement over the past 20 years, which has forced lawmakers to stay up-to-date in order to keep people as safe online as they should be in real life.
In all the circumstances, it is a serious criminal offence to menace, harass or offend another person through the use of a carriage service, and can result in very severe consequences.
What Is a Carriage Service?
A carriage service is any kind of communication platform or technology which is used to communicate, and includes two categories, guided media and unguided media.
- Guided media refers to anything with a physical path or conductor (coaxial cable, wiring), such as those used in landline telephones or cable computers
- Unguided media refers to wireless communication which uses unguided electromagnetic energy (microwaves, infrared) such as those used in mobile calls and texting, as well as social media platforms and any other method of communication which transmits signals via the air.
Guided and unguided electromagnetic energy all sounds very scientific, but the simplified version is that a carriage service encompasses most of all modern forms of communication.
The most common carriage services in today’s society are phones (calling and texting), email, and social media apps like Facebook, Instagram, Snapchat and Tiktok. One of the more recent, public cases of use of carriage service to menace or harass involved former test cricketer Michael Slater who was charged with the offence after sending 66 messages and making 18 phone calls to an ex-partner over the period of two-and-a-half hours. Although Slater’s charges were later dropped citing mental health issues, this kind of behaviour is an example of harassment via use of carriage service.
The Definition Of “Harass” And “Menace”
It is important to understand the distinction between the different kinds of offences that can be perpetrated through a carriage service, define these terms and what they entail, as well as outline the different potential penalties for each.
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. 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 to 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 threatening/harassing communications. 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. If you are charged with this offence, it is important that you stop contacting, or attempting to contact the victim immediately.
- “Menace” means to cause a normally courageous person to feel apprehensive for their safety because of the call or calls. Using a carriage service to menace does not mean that a call must 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 via the carriage service provider, it is enough.
The offence can be considered aggravated if the harassment, menace or offence entails the sending of private sexual material such as revenge porn or other pornographic material. Unfortunately this is an area of the law which is struggling to catch up with technology, as police cannot charge anyone unless there are screenshots or other concrete evidence that proves beyond a reasonable doubt that a criminal law was broken.
Common examples of what may constitute the crime of using a carriage service to menace, harass or cause offence include:
- Calling, message or emailing someone excessively, such as an ex-partner or a potential or desired partner.
- Using a Facebook status to bully or degrade a former partner or friend, or send threats, even if it is a hoax threat.
- Sending unsolicited private sexual material, from private genitalia, forwarding pornographic material, or distribution of revenge pornographic images.
- Posting photographs of ex-partners online to be criticised or commented upon negatively.
- Any kind of constant messaging, offensive language, or contact of an unwilling participant, including strangers (random numbers, pranks etc).
What Must The Prosecution Prove?
In order to be convicted of using a carriage service to menace, harass or offend, 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 using a carriage service in a criminal manner.
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. Plea negotiations have a proven track record of being looked upon favourably, considering particular circumstances.
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 the improper use of a carriage service is two years imprisonment in the Local Court. If the matter is heard in the District Court, the maximum penalty is three years imprisonment. However, it also will depend on the criminal code, whether it is an aggravated offence, or whether or not your legal team can have such conduct dealt with pursuant to section 10 of the Crimes Act (Sentence Procedure). A section 10 is the best outcome, as it means that there will be no recorded conviction, no other penalty, and no criminal record.
Generally, penalties that a court can impose for any criminal offence in NSW are:
- Section 10 – No conviction recorded
- Section 9 – Good behaviour bond
- Community service order
- Section 12 – Suspended sentence
- Intensive correction order
- Home detention
- Prison sentence
Use of a carriage service to menace, harass or offend is a criminal offence which carries quite severe penalties under the commonwealth criminal code. However, there are a number of proven defences that can be used if a person commits such an offence.
Duress involves the compelling or coercion of a criminal act by a third party, and is a defence which is available for almost every crime in NSW. However, it must be proven that your behaviour was heavily or entirely influenced by the threat of physical, financial or other kinds of harm if you did not yield to their demands e.g. blackmail or threat of violence.
Necessity is a defence which is used when the accused has reason to believe that their actions were necessary to prevent harm, serious injury, death or another form of great loss from befalling them.
Another prominent and often successful form of defence is that of self-defence, which relates to the person committing the offence to defend themselves, prevent unlawful deprivation of liberty, protect property or prevent criminal trespass.
- Mental health
As previously mentioned in the Michael Slater case, it is possible to have charges of use of a carriage service to menace, harass, or offend dropped if it can be proved that the accused was mentally impaired or unfit, under the Mental Health Act 2007, No. 8.
There are also other defences commonly used in courts to avoid a conviction of the alleged conduct of using most electronic communications to menace, harass or offend, such as reasonable mistake of fact and factual dispute of content.
We are amongst the top criminal defence lawyers in Sydney with years of experience and exposure to a multitude of case types. LY Lawyers have offices in Sydney City CBD, Parramatta, Liverpool, Wollongong, Newcastle and Gosford and we are available to appear for our clients in any NSW or interstate court. We’ve appeared in serious criminal cases throughout Australia, including in Regional NSW, Victoria, Queensland, Northern Territory, South Australia, Western Australia and Canberra.
Our track record of success in serious criminal cases throughout Australia is proven. Take a look at our case studies throughout our website and see the difference a good lawyer makes.
With some of the best criminal lawyers in Sydney, any brush with the law will be expertly handled, giving you the best chance of a not guilty verdict. From traffic offences to drug possession cases, rest assured that our defence lawyers will do their best to solve all your legal woes.
As accomplished court advocates and experts in our field, we are confident that there is no matter too small or too large for us to deal with. Call our 24/7 hotline at 1300 595 299 for a free consultation.