Using a Carriage Service to Menace, Harass or Cause Offence

The use of mobile phones, social media and online messaging has made communication easier than ever. However, communications made online can also result in criminal charges.

Section 474.17 of the Criminal Code Act 1995 (Cth) makes it an offence to use a carriage service in a way that reasonable people would regard, in all the circumstances, as menacing, harassing or offensive.

The offence can apply to a wide range of communications, including text messages, emails, social media posts, private messages, photographs, videos and telephone calls.

The maximum penalty for the offence is 5 years imprisonment.

What is a Carriage Service?

In practical terms, a carriage service includes devices that use telecommunications and internet services. These are most commonly things like telephone call, text message, email, social media post or other online communication.

The offence is not limited to communications made publicly. Private communications between individuals can also fall within the provision.

What The Prosecution Must Prove

The prosecution must establish that:

• The accused used a carriage service; and
• The use of that carriage service was, in all the circumstances, something that a reasonable person would regard as menacing, harassing or offensive.

The test is objective. The question is not simply whether the recipient felt threatened, upset or offended. The court considers how reasonable people would regard the communication in the circumstances.

What Conduct Can Amount to an Offence for Using a Carriage Service to Menace, Harass or Cause Offence?

There is no exhaustive list of conduct that falls within section 474.17.

Depending on the circumstances, examples may include:

• Sending repeated and unwanted messages;
• Making repeated telephone calls;
• Sending threatening or intimidating text messages; or
• Sending offensive photographs, videos or other material;

These are non-exhaustive examples that may be classified as an offence under section 474.17.

In circumstances where the communications involve specific threats to kill or cause serious harm, more serious offences may be available.

“It Was Just A Joke…”

The fact that a recipient did not personally regard a communication as threatening or offensive does not automatically mean that no offence has occurred, as the consideration is whether a reasonable recipient would be offended.

Associated Penalties

The maximum penalty for an offence under section 474.17 is 5 years imprisonment.

The maximum penalty was increased from 3 years to 5 years in January 2022.

The actual penalty imposed will depend upon the circumstances of the offending. Factors that may be relevant include the nature and duration of the conduct, the number and content of communications, the impact on the victim, whether the conduct was persistent, any prior criminal history, the offender’s personal circumstances and a number of other factors.

Commonwealth Sentencing Structures

As this offence is a Commonwealth offence, sentencing is governed by the federal sentencing framework contained in Part IB of the Crimes Act 1914 (Cth).

Depending on the circumstances, sentencing options can include a fine, a recognizance or other non-custodial order, as well as imprisonment. The availability and appropriateness of a particular sentencing option will depend upon the offence and the circumstances of the individual case.

It is important to obtain legal advice in relation to possible sentencing structures available to you in order to work towards receiving the best outcome for your matter.

The Court Process

Section 474.17 is a Commonwealth criminal offence. In Queensland, matters under this provision may be dealt with in the Magistrates Court, depending on the circumstances and how the prosecution proceeds.

What Defences May Be Available?

Whether a defence is available will depend upon the particular circumstances.

Issues may arise about whether the accused was responsible for the communication, whether a carriage service was used, and whether the communication was objectively menacing, harassing or offensive.

Context may also be particularly important. A message that appears offensive when viewed in isolation may have a different meaning when considered alongside the communications that preceded it.

The prosecution must prove all elements of the offence beyond reasonable doubt.

What Should You Do If You Are Charged with Using a Carriage Service to Menace, Harass or Cause Offence?

Electronic communications can provide significant evidence in these matters. This can include message histories, screenshots, social media posts, call records and other digital material.

If you are charged under section 474.17, you should obtain legal advice about the allegations, the evidence relied upon by the prosecution, any available defences and the appropriate way to respond to the charge.

It may additionally be useful to retain any correspondence that you may be in possession of between yourself and the complainant. This material may be vital to a potential defence of the charge against you in the future.

Reach out to our experienced criminal lawyers today to arrange a consultation to discuss your matter further.