At Chidiac & Associates, we provide strategic criminal defence representation to individuals facing Commonwealth criminal charges throughout Sydney and New South Wales. We understand the importance of carefully examining the communications relied upon by the Prosecution, the context in which they were made and the evidence connecting the accused person to the alleged conduct.

We approach every matter with meticulous preparation, detailed analysis of the Prosecution evidence and a commitment to protecting our clients' rights throughout the investigation, court proceedings and sentencing process.

What is Using a Carriage Service to Menace, Harass or Cause Offence?

Using a carriage service to menace, harass or cause offence is an offence under section 474.17 of the Criminal Code Act 1995 (Cth).

The offence applies where a person uses a carriage service in a way that reasonable persons would regard as, in all the circumstances, menacing, harassing or offensive. The legislation provides that this may arise from the method of use, the content of a communication, or both.

The offence can apply to a broad range of electronic communications, including:

• text messages;
• telephone calls;
• emails;
• social media messages;
• online posts;
• direct messages;
• internet-based communications; and
• other communications transmitted using a carriage service.

The Prosecution bears the burden of proving every element of the offence beyond reasonable doubt. A person charged with an offence under section 474.17 is presumed innocent unless and until the Prosecution establishes its case to the required standard.

Legislation — Section 474.17 Criminal Code Act 1995 (Cth)

Section 474.17 provides that a person commits an offence if:

1. the person uses a carriage service; and
2. 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.

The maximum penalty for a natural person is 5 years imprisonment and/or fine of $33,000.00 and the maximum penalty for an incorporated body is a fine of $165,000.00.

The legislation also specifically provides that the offence may apply to conduct directed towards certain emergency service and National Security Hotline personnel.

What is a Carriage Service?

A carriage service is broadly a telecommunications service used to carry communications.

In practical terms, the offence can apply to communications made through telephone and internet services, including mobile phones, SMS, email and online communication platforms.

Whether a particular service constitutes a carriage service will depend upon the relevant telecommunications arrangements and the circumstances of the alleged conduct.

Elements of Using a Carriage Service to Menace, Harass or Cause Offence

To establish a charge under section 474.17, the Prosecution must prove the elements of the offence beyond reasonable doubt.

1. The Accused Used a Carriage Service

The Prosecution must prove that the accused person used a carriage service.

This may involve evidence concerning a telephone number, mobile telephone, email account, social media account, computer, internet service or other electronic communication service.

In some cases, the identity of the person who actually sent or made the communication may become an important issue.

2. The Accused Used the Carriage Service in the Alleged Manner

The Prosecution must prove that the accused person engaged in the relevant conduct.

Where the allegation involves electronic communications, this may require examination of:

• who sent the communication;
• who controlled the relevant account;
• who had access to the device;
• whether another person had access to the account or telephone;
• the authenticity of the communications; and
• the reliability of the evidence identifying the accused as the person responsible.

3. The Conduct Was Menacing, Harassing or Offensive

The Prosecution must establish that the manner in which the carriage service was used was something that reasonable persons would regard as, in all the circumstances, menacing, harassing or offensive.

This may depend upon the content of the communication, the manner in which it was sent, or both.

The court is required to consider the circumstances as a whole rather than simply considering whether the recipient personally found the communication upsetting or offensive.

The Reasonable Person Test

A significant feature of section 474.17 is that the legislation adopts an objective test.

The question is whether reasonable persons would regard the conduct as menacing, harassing or offensive in all the circumstances.

It is therefore not sufficient simply to establish that the complainant was:

• upset;
• angry;
• offended;
• frightened; or
• uncomfortable.

The Prosecution must establish the objective statutory test.

The circumstances surrounding the communication may therefore be highly important to the defence.

What Does "In All the Circumstances" Mean?

The court may consider the circumstances surrounding the alleged conduct when determining whether the statutory test has been satisfied.

Relevant matters may include:

• the precise words used;
• the meaning conveyed by the communication;
• the number of communications;
• the frequency of communications;
• the timing of communications;
• whether communications were repeated;
• the relationship between the parties;
• the history between the parties;
• whether the recipient asked the accused to stop contacting them;
• whether the communications escalated;
• whether threats or intimidation were involved;
• whether photographs, videos or other material were transmitted; and
• the broader context in which the communication occurred.

A communication should therefore be considered in its proper context rather than necessarily being viewed in isolation.

Menacing Conduct

Conduct may be alleged to be menacing where it is threatening, intimidating or otherwise capable of causing apprehension or concern.

Depending upon the circumstances, allegations may involve:

• threatening messages;
• intimidating communications;
• repeated threats;
• threats concerning a person's property;
• threats concerning family members;
• statements about attending a person's home or workplace; or
• other communications alleged to be threatening or intimidating.

Where the allegation specifically concerns a threat to kill or a threat to cause serious harm, other Commonwealth offences may apply.

Section 474.15 of the Criminal Code Act 1995 (Cth) separately deals with using a carriage service to make a threat to kill or cause serious harm. The maximum penalty is 10 years' imprisonment for a threat to kill and 7 years' imprisonment for a threat to cause serious harm.

Harassing Conduct

Harassment may involve repeated or persistent unwanted communications.

Depending upon the circumstances, allegations may involve:

• repeatedly sending text messages;
• repeatedly making telephone calls;
• sending numerous emails;
• repeatedly contacting a person through social media;
• continuing to contact a person after being asked to stop; or
• persistent online communications.

However, not every unpleasant, persistent or annoying communication constitutes a criminal offence.

The Prosecution must still establish that reasonable persons would regard the conduct as harassing in all the circumstances.

Offensive Communications

The fact that a person was offended by a communication does not automatically establish an offence under section 474.17.

People may argue, criticise, disagree or express views that another person considers offensive without necessarily committing a criminal offence.

The Prosecution must establish that reasonable persons would regard the relevant use of the carriage service as offensive in all the circumstances.

The context, language used, relationship between the parties, purpose of the communication and overall circumstances may therefore become important issues in the defence.

What the Prosecution Must Prove

The Prosecution bears the burden of proving the charge beyond reasonable doubt.

Depending on the circumstances of the allegation, the Prosecution must establish:

1. The accused was responsible for the conduct
   The Prosecution must establish that the accused person was the person who engaged in the relevant conduct.
2. A carriage service was used
   The Prosecution must establish that the relevant conduct involved the use of a carriage service.
3. The relevant communication or conduct occurred
   The Prosecution must establish the communication or conduct relied upon in the charge.
4. The conduct was objectively menacing, harassing or offensive
   The Prosecution must establish that reasonable persons would regard the conduct as menacing, harassing or offensive in all the circumstances.

If the Prosecution fails to establish an essential element beyond reasonable doubt, the accused person should be acquitted.

Does the Prosecution Have to Prove an Intention to Menace, Harass or Offend?

Section 474.17 does not expressly require the Prosecution to prove, as a separate element, that the accused person intended to menace, harass or offend another person.

Instead, the statutory test focuses upon whether reasonable persons would regard the conduct as menacing, harassing or offensive in all the circumstances.

This does not mean that a person's state of mind or intention can never be relevant. The circumstances in which the communication was made, what the accused intended to communicate and the surrounding evidence may all be relevant when determining the issues in the case.

Defending Using a Carriage Service Charges

A charge under section 474.17 requires a detailed examination of the Prosecution case. The Prosecution must prove each required element beyond reasonable doubt.

Depending on the circumstances, possible defence issues may include:

• the accused did not send or make the communication;
• mistaken identity;
• another person had access to the relevant device or account;
• the Prosecution cannot establish authorship;
• the communication has been taken out of context;
• the conduct was not objectively menacing, harassing or offensive;
• the Prosecution evidence is unreliable;
• the communications relied upon are incomplete;
• challenging the authenticity of electronic evidence;
• challenging the interpretation or meaning attributed to communications; or
• identifying inconsistencies in the complainant's evidence.

Electronic communication matters can involve substantial evidence, including telephone records, screenshots, social media records, account information, device evidence, metadata and witness evidence.

Examining Electronic Evidence

Electronic evidence can be critical in a section 474.17 Prosecution.

The defence may need to examine:

• the complete message history;
• deleted or missing messages;
• telephone records;
• social media records;
• account ownership;
• account access;
• device ownership;
• screenshots;
• metadata;
• timestamps;
• photographs and videos;
• surrounding communications; and
• evidence concerning the identity of the sender.

The context and completeness of electronic evidence can be particularly important where the Prosecution relies upon selected communications rather than the complete conversation.

Penalties for Using a Carriage Service to Menace, Harass or Cause Offence

The maximum penalty for an offence under section 474.17 of the Criminal Code Act 1995 (Cth) is:

5 years' imprisonment

The maximum penalty is the highest penalty available for the offence and does not mean that every person convicted will receive a term of imprisonment.

The sentence imposed will depend upon the circumstances of the offending and the individual circumstances of the offender.

Sentencing for Using a Carriage Service to Menace, Harass or Cause Offence

If a person is convicted of using a carriage service to menace, harass or cause offence, or enters a plea of guilty, the court will consider the circumstances of both the offending and the offender when determining the appropriate sentence.

Factors may include:

• the seriousness of the conduct;
• the nature and content of the communications;
• the number and frequency of communications;
• whether the conduct was prolonged;
• whether threats or intimidation were involved;
• the impact upon the complainant;
• whether the conduct was planned;
• the offender's criminal history;
• the offender's personal circumstances;
• their prospects of rehabilitation;
• their level of remorse;
• whether they entered an early plea of guilty; and
• any other relevant mitigating or aggravating circumstances.

Effective sentencing advocacy requires careful preparation and presentation of material that allows the court to properly understand the individual circumstances of the offender.

Preparing Your Defence

A charge involving electronic communications requires careful preparation and detailed examination of the evidence.

At Chidiac & Associates, we assist clients by:

• analysing the Prosecution evidence;
• reviewing the communications relied upon;
• examining the context of messages and online communications;
• identifying factual and legal issues;
• investigating questions of identity and authorship;
• reviewing electronic and telecommunications evidence;
• identifying inconsistencies in witness evidence;
• challenging unreliable or incomplete evidence;
• preparing for contested hearings and trials; and
• presenting a clear and persuasive defence.

Our approach is built on thorough preparation, strategic decision-making and strong courtroom advocacy.

How We Can Help With Using a Carriage Service Charges

At Chidiac & Associates, we understand the serious consequences that can arise from Commonwealth criminal charges involving electronic communications.

These matters require careful analysis of the communications, the surrounding circumstances and the evidence relied upon by the Prosecution.

We can assist with:

• advice during police investigations;
• advice before participating in a police interview;
• developing defence strategies;
• analysing electronic and telecommunications evidence;
• reviewing social media and messaging evidence;
• challenging identification and authorship evidence;
• negotiating with the Prosecution where appropriate;
• preparing for trial;
• defending the charge in court;
• sentencing submissions; and
• appeals where appropriate.

Our approach is built on meticulous preparation, strategic advice and persuasive courtroom advocacy.