What is use a carriage service to menace, harass or offend?
This is where a person uses a carriage service to send communication that offends, harasses, or menaces another person.
Communication is ‘by means of guided or unguided electromagnetic energy or both.” This includes, but is not limited to: text or phone messages, emails, and messages sent via videoconferencing, Instagram or Facebook.
The test for whether communication crosses a threshold of decency depends on what ‘reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.’ The High Court in R v Monis [2013] HCA 4 at [336] determined that the reasonable person may experience:
- ‘a degree of offensiveness at the higher end of the spectrum, although not necessarily the most extreme.’
The offence is aggravated (more serious) if private sexual material depicting a person over 18 years in a sexual pose or in sexual activity is communicated.
What is the maximum penalty
- The maximum penalty for this offence is imprisonment for 3 years.
- NB: The penalty increases to imprisonment for 5 years if private sexual material is sent.
Please note that such a penalty is reserved for the most serious cases only.
What are my options?
Plead guilty
This option is recommended only where you accept that you:
- used a carriage service; and
- the message was menacing, harassing or offending; and
- a reasonable person would regard the message as menacing, harassing or offensive.
A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.
What possible outcomes exist?
- A non-conviction via a section 10 – asking the court for leniency
- Leniency is where the court has exercised a discretion not to convict you. Therefore, you will avoid:
- a fine or a penalty.
- a conviction.
- Leniency is where the court has exercised a discretion not to convict you. Therefore, you will avoid:
- Conditional release order “CRO” (with or without conviction)
- This is usually subject to a period of good behaviour.
- If an offence is committed during the period of the order, a court may resentence you for the offence committed.
- Community Corrections Orders (“CCO”)
- An example of a CCO is performing service within the community.
- Intensive Corrections Order (“ICO”)
- This is where a term of imprisonment can be served in the community.
- Full-time imprisonment
- Served in a correctional facility.
Plead not guilty
To prove this offence, the Prosecution must establish beyond a reasonable doubt that:
- used a carriage service; and
- the message was menacing, harassing or offending; and
- a reasonable person would regard the message as menacing, harassing or offensive.
If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then the court must find you not guilty.
Defences:
- You did not use a carriage service
- You were not responsible for sending the communication.
- The reasonable person would not regard your message as menacing, harassing or offensive.
- Duress: circumstances or the threats of another compelled you to act in the manner you had.
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