The Criminal Code Act 1995 encompasses numerous offences involving the use of a carriage service. These vary in seriousness, including threatening to kill another person.

Section 474.17 Criminal Code Act 1995 governs the offence of using a carriage service to menace/harass/offend another person.

Some examples of acts found to be menacing, harassing or offensive are:

1. Contacting another person repeatedly through phone and/or social media;

2. Calling someone to insult, yell or threaten them;

3. Posting offensive language and topics online or via text;

4. Constant phone calls, texts or undesired social media messages to a person;

5. Forwarding or sending undesired images to another person.

The maximum penalty for offences under section 474.17 Criminal Code Act 1995 is 5 years imprisonment.

In order to prove this offence, the prosecution will need to prove each and every of the following elements:

1. You used a carriage service to communicate with another person; and

2. The use of that service was intentional; and

3. A reasonable person would consider the communication to be menacing, harassing or offensive.

Carriage Service

Is a service such as social media, email, mobile phone that is used for carrying communications by means of guided or unguided electromagnetic energy including calls, messages and internet transmissions.

Menacing

An expression or implied threat of detrimental or unpleasant conduct which is likely to cause the other person to act unwillingly.

Offensive

Words or actions that would make a reasonable person feel resentful, upset or annoyed.

Harass

To bother, pester or disturb another repeatedly.

Defences

1. You did not use a carriage service;

2. The conduct does not amount to menacing, harassing or offensive accordingly to the reasonable person.

Before pleading guilty to this offence, it is important that you speak to a specialist criminal lawyer.

The penalty imposed will depend on the seriousness of the conduct. It may be a good idea to obtain a psychological report for sentence to demonstrate your character to the magistrate and provide detail into your life circumstances. This could help to reduce the penalty imposed and allow the magistrate to understand the context behind the offending behaviour.

There are various different types of offending that fall within the Criminal Code Act 1995.

Section 474.22 includes the following offences:

1. Use of carriage service to solicit child abuse material

2. Use of carriage service to transmit/publish/promote child abuse material

3. Use of carriage service to transmit child abuse material to self

4. Use of carriage service to access child abuse material

5. Use of carriage service to solicit child abuse material

All offences relating to child abuse material are strictly indictable. This means that the matter has to be dealt with in the District Court, and is not capable of finalising in the Local Court.

These offences all carry 15 years imprisonment as a maximum penalty.

In order to prove any of the above offences, the following must be proven beyond reasonable doubt:

1. You used a carriage service; and

2. You either:

   1. Accessed material; or

   2. Caused material to be transmitted to yourself or others; or

   3. Transmitted, made available, published, distributed, advertised or promoted material; or

   4. Solicited material;

3. The material is child pornography or abuse material.

Under section 91FB Crimes Act 1900, child abuse material is described as material that depicts or describes, in a way that reasonable persons would regard as being, in all of the circumstances, offensive:

1. A person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse; or

2. A person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity;

3. A person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity; or

4. The private parts (genital area, anal area or breasts) of a person who is, or appears to be or is implied to be, a child.

Carriage Service

Is a service such as social media, email, mobile phone that is used for carrying communications by means of guided or unguided electromagnetic energy including calls, messages and internet transmissions.

The charge will commence in the Local Court, however due to the offence being Strictly Indictable, it will ultimately be committed to a higher court for proceed to Trial by Jury (or in some cases, by Judge alone).

Defences

1. You are a law enforcement officer acting in the course of duties and your conduct was reasonable;

2. The material is not child abuse or pornography material;

3. The child pornography material came into your possession unsolicited and you either did not know or as soon as you became aware of it, you took reasonable steps to get rid of it;

4. You did not use a carriage service.

It is very important to speak to an experienced criminal lawyer before entering a Plea of Guilty to an offence such as this. A court will consider the seriousness of the circumstances, such as the number of images/videos involved, where the images fall on a scale used to grade the depravity of images and more.

A jail sentence can be likely for these offences, and it is important to speak to an experienced legal team in order to increase your chances of avoiding imprisonment where possible.