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  • Writer's pictureGeoff Harrison

Use Carriage Service to Menace or Harass


Criminal Barrister, Criminal Lawyer, Lawyer, Barrister, Criminal Solicitor, Best Criminal Barrister, Best Criminal Solicitor, Best Criminal Laywer, s474.17. 474.17, 474.15, use carriage service to menace or harass

Published by Geoff Harrison | 5 June 2024


A fairly common charge relating to domestic violence matters is using a carriage service to menace, harass, or cause offence, which is a charge under s 474.17 (set out below along with other relevant offences) of the Criminal Code (Cth) ('the Act'). The maximum penalty for this offence is 10 years imprisonment.


Other Sources:


Cases:


Extracted Legislation:

474.15 Using a carriage service to make a threat


Threat to kill


(1) A person (the first person ) commits an offence if:


(a) the first person uses a carriage service to make to another person (the second person ) a threat to kill the second person or a third person; and


(b) the first person intends the second person to fear that the threat will be carried out.


Penalty: Imprisonment for 10 years.


Threat to cause serious harm


(2) A person (the first person ) commits an offence if:


(a) the first person uses a carriage service to make to another person (the second person ) a threat to cause serious harm to the second person or a third person; and


(b) the first person intends the second person to fear that the threat will be carried out.


Penalty: Imprisonment for 7 years.


Actual fear not necessary


(3) In a prosecution for an offence against this section, it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.


Definitions


(4) In this section:


"fear" includes apprehension.


"threat to cause serious harm to a person" includes a threat to substantially contribute to serious harm to the person.


474.16 Using a carriage service for a hoax threat


A person commits an offence if:


(a) the person uses a carriage service to send a communication; and


(b) the person does so with the intention of inducing a false belief that an explosive, or a dangerous or harmful substance or thing, has been or will be left in any place.


Penalty: Imprisonment for 10 years.


474.17 Using a carriage service to menace, harass or cause offence


(1) 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.


Penalty: Imprisonment for 5 years.


(2) Without limiting subsection (1), that subsection applies to menacing, harassing or causing offence to:


(a) an employee of an NRS provider; or


(b) an emergency call person; or


(c) an employee of an emergency service organisation; or


(d) an APS employee in the Department administered by the AFP Minister acting as a National Security Hotline call taker.


474.17A Aggravated offences involving private sexual material--using a carriage service to menace, harass or cause offence


Standard aggravated offence


(1) A person commits an offence against this subsection if:


(a) the person commits an offence (the underlying offence ) against subsection 474.17(1); and


(b) the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and


(c) the material is private sexual material.


Penalty: Imprisonment for 6 years.


(2) There is no fault element for the physical element described in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.


(3) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.


Special aggravated offence


(4) A person commits an offence against this subsection if:


(a) the person commits an offence (the underlying offence ) against subsection 474.17(1); and


(b) the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and


(c) the material is private sexual material; and


(d) before the commission of the underlying offence, 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to either or both of the following:


(i) contraventions of subsection 75(1) of the Online Safety Act 2021 ;


(ii) contraventions of section 91 of the Online Safety Act 2021 that relate to removal notices given under section 89 of that Act.


Penalty: Imprisonment for 7 years.


(5) There is no fault element for the physical element described in paragraph (4)(a) other than the fault elements (however described), if any, for the underlying offence.


(6) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (4)(a) if the person has a defence to the underlying offence.


(7) Absolute liability applies to paragraph (4)(d).


Note: For absolute liability, see section 6.2.


Double jeopardy etc.


(8) A person who has been convicted or acquitted of an offence (the aggravated offence ) against subsection (1) may not be convicted of an offence against subsection 474.17(1) or subsection (4) of this section in relation to the conduct that constituted the aggravated offence.


(9) Subsection (8) does not prevent an alternative verdict under section 474.17B.


(10) A person who has been convicted or acquitted of an offence (the aggravated offence ) against subsection (4) may not be convicted of an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.


(11) Subsection (10) does not prevent an alternative verdict under section 474.17B.


(12) A person who has been convicted or acquitted of an offence (the underlying offence ) against subsection 474.17(1) may not be convicted of an offence against subsection (1) or (4) of this section in relation to the conduct that constituted the underlying offence.


When conviction must be set aside


(13) If:


(a) a person has been convicted by a court of an offence against subsection (4) on the basis that 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to either or both of the following:


(i) contraventions of subsection 75(1) of the Online Safety Act 2021 ;


(ii) contraventions of section 91 of the Online Safety Act 2021 that relate to removal notices given under section 89 of that Act; and


(b) one or more of those civil penalty orders are set aside or reversed on appeal; and


(c) if the civil penalty orders covered by paragraph (b) had never been made, the person could not have been convicted of the offence; and


(d) the person applies to the court for the conviction to be set aside;


the court must set aside the conviction.


(14) If:


(a) a person has been convicted by a court of an offence (the aggravated offence ) against subsection (4); and


(b) the court sets aside the conviction under subsection (13);


the setting aside of the conviction does not prevent proceedings from being instituted against the person for an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.

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