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.
Using a Carriage Service to Menace or Harass is prosecuted under Commonwealth legislation.
The offence of Using a Carriage Service to Menace of Harass is an indictable offence prosecuted 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.
In this article, we examine the offence of using a carriage service to menace or harass. We consider the elements, defences, and penalties for this offence.
Table of Contents
What the Prosecution Must Prove for Using a Carriage Service to Menace or Harass
The elements of Section 474.17 are:
A person uses a carriage service; AND
The content of the communication is menacing, harassing or 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.
As to how alleged conduct is to be assessed as being menacing or harassing the touchstone is whether a reasonable person would find the behaviour offensive, menacing or harassing.
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 5 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 towhether the content of the communication was menacing, harassing, or offensive.
Factual dispute as to the identity of the person alleged to be 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:
Imprisonment.
Fine
Bond with conviction
Bond without conviction
Conclusion
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