What the prosecution must prove
The offence of Using a carriage service to menace is frequently prosecuted by the Victorian Police and often in the context of family violence offences.
The offence provision is contained under section 474.17 of the Criminal Code (Cth).
Because of the subject matter of this offence, the offence is frequently an alternative to the offence of stalking.
The elements of Section 474.17 are:
- A person uses a carriage service; AND
- The content of the communication is menacing, harassing of offensive (as determined by a reasonable person taking all the circumstances of the subject communication into account)
"Carriage service" - means a service for carrying communications by means of guided and/or unguided electromagnetic energy.
"Communication" includes any communication:
(a) whether between persons and persons, things and things or persons and things; and
(b) whether the communication is:
(i) in the form of text; or
(ii) in the form of speech, music, or other sounds; or
(iii) in the form of visual images (still or moving); or
(iv) in the form of signals; or
(v) in the form of data; or
(vi) in any other form; or
(vii) in any combination of forms.
The Penalties for Using a Carriage Service to Menace or Harass
The maximum penalty under section 474.17 of the Criminal Code for this offence is 3 years imprisonment.
Defences to Use a Carriage Service to Menace or Harass
The defences available upon a particular set of facts may include:
- Factual dispute as whether the content of the communication was menacing, harassing, or offensive.
- Factual dispute as to the identity of the person alleged responsible for sending the communication
- Mental impairment.
- Reasonable mistake of fact;
Sentencing outcomes for Using a Carriage Service to Menace or Harass
The offence is frequently heard in the Magistrates' Court, and the sentencing outcomes include:
- Community Corrections Order;
- Bond with conviction
- Bond without conviction
Require Further Advice and or Representation?
If you are facing a charge of Use carriage service to harass or menace, prompt legal advice is important. Your lawyer may be able to identify a defence, or alternatively outline a strategy to mitigate the penalty. For an obligation free consultation call our office on 03 9668 7600 or complete a form for a case assessment.