USE CARRIAGE SERVICE TO MENACE
What is Use Carriage
Service to Menace?
Use carriage service
to menace occurs when a person uses guided and/or unguided electromagnetic
energy to menace, harass or cause offence.In layman terms, this refers to
emails, text messages and calls and social media communications. This list
however is not exhaustive and as this offence such is given quite a broad
definition which covers most electronic communications.
Some examples of using carriage service to menace include;
·
Continual or constant
phone calls, texts or Facebook messages.
·
Threats to cause harm
to that person or another person or their property, offensive language or
offensive topic of discussion.
Case law/Jurisdiction
An offence of use carriage service to menace is a commonwealth offence
which means it can be dealt with both in the Local Court or on election on
indictment by the Department of Public Prosecutions (DPP) in the higher courts
(District or Supreme).
“Harass” typically means to trouble or annoy by a repeated course of
conduct. However, a single telephone call may be harassment depending on the
contents of the words uttered, or the time and circumstances in which the call
was made even if words were not uttered.
“Menace” means to cause a normally courageous person to feel
apprehensive for their safety because of the call or calls. It isn’t necessary
for a call to threaten actual harm for it to be menacing. Nor is it necessary
for the communication to be made directly to the person menaced. As long as the
caller intends the communication to be communicated to the ultimate recipient,
it is enough.
Plead guilty
the law
The offence of "using a carriage service to menace, harass or cause
offence," is a Commonwealth offence and is contained in section 474.17 the Criminal Code Act 1995(CTH) which
states: "a person is guilty of an offence if:
·
The person uses a
carriage service; and
·
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."
What must the prosecution
prove?
Since Use Carriage Service to Menace is a criminal offence, the burden
of proof lies on the Prosecution. The prosecution must prove the Accused’s
guilt beyond reasonable doubt. That is a high standard of proof that the
prosecution must achieve before someone can be convicted of Use Carriage
Service to Menace
To establish Use Carriage Service to Menace, the prosecution must prove
each of the following matters beyond reasonable doubt:
That you
·
Used a carriage
service;
·
In a way that would
cause a reasonable person to feel menaced, harassed or offended.
If you are
charged with the offence of Use Carriage Service to Menace what are your
options?
National Criminal
Lawyers have been successful in defending a number of Use Carriage Service to
Menace charges where the prosecution could not establish each of the elements
of Use Carriage Service to Menace. We have also achieved a number of
non-convictions for Use Carriage Service to Menace charges.
NCL offer the
following options for those who have been charged with Use Carriage Service to
Menace:
1. We will negotiate with prosecutors
(police or DPP) (a term referred to as “plea negotiations”) to request that the
charge is withdrawn, downgraded or fact sheets amended;
2. NCL will Plead Not Guilty and go to
hearing/trial and persuade the Court that prosecution has not proven its case
beyond reasonable doubt;
3. Plead
guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view
of having you sentenced less harshly; and/or
4. Plead guilty with full acceptance of
the facts as set out by the police and make strong submissions on your behalf
requesting that the Court not record a criminal conviction.
Pleading guilty
If you agree that you have committed the offence and the police are able
to prove all the elements of the offence, it is best to plead guilty at an
early opportunity to receive the maximum discount. Currently the maximum
discount available for an early plea of guilty is 25% of the sentence.
Furthermore, the early guilty plea shows the Court that you have remorse
and contrition for your actions.
Our Lawyers at National Criminal Lawyers work closely with you to ensure
that we obtain all necessary paper work at increasing the chances of obtaining
a non-conviction or section 10.
Maximum penalty:
Use Carriage Service to Menace can be punished with a prison sentence of
up to 2 years (if heard in the Local Court) or up to 3 years (If heard in the
District Court). Please note that the penalties mentioned are reserved for the
worse case offending and are unlikely to be the penalty you receive.
Pleading Not Guilty
If you decide to plead not guilty you will need to
prepare to go to a Defended Hearing. A defended hearing is where all the
witnesses of that case are called to give evidence. The witnesses are both
examined by the prosecution and tested by your defence lawyers.
National Criminal Lawyers have defended thousands of people charged with
Use Carriage Service to Menace and are experts at these hearings.
Defences
Sometimes the elements of Use Carriage Service to Menace can be
established however there also may exist a defence at law. Some of the possible
defences available for those charged with Use Carriage Service to Menace can
include:
·
It is a defence under
section 473.5 of the Criminal Code if a carrier, carriage service provider, internet
service provider or internet content host is engaging in such conduct solely in
their capacity as such.
Statistics
The Courts are not bound by statistics however there must be reasonable
consistency in sentences. A Magistrate or Judge should have regard to what has
been done in other cases. In Green
[2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ
stated:
“Equal
Justice” embodies the norm expressed in the terms “equality before the law”. It
is an aspect of the rule of law.
For Use Carriage Service to Menace 35% of offenders received a SECT
20(1)(a) Recognizance order which is a good behaviour under the Commonwealth
Crimes Act.
POSSIBLE PENALTY’S
In NSW, a court can impose any of the following penalties for a Use
Carriage Service to Menacecharge.
·
Prison sentence
·
Home Detention
·
Intensive correction
order (previously periodic detention)
·
Suspended sentence
·
Community service
order (CSO)
·
Good behaviour bond
·
Fine
·
Section 10
However, from the 24 September 2018 new penalty’s will be replacing the
above. They are as follows:
·
Full time
Imprisonment
·
New ICO (ICO) with a
home detention condition available
·
New Community
Correction Order (CCO)
·
Fine
·
New Conditional
release Order (CRO)
Case studies
The alleged victim complained to police about being intimidated,
harassed and threatened by text messages however the texts related to
non-threating messages regarding the victim being late in dropping off and
picking up their child as per the Family Court Custody orders. The Court meticulously
went through all the text messages and ultimately was not satisfied beyond
reasonable doubt that our clients conduct amounted to intimidation, and
therefore dismissed the charge of use carriage service to menace.
Why National Criminal
Lawyers
There are three reasons to choose National Criminal Lawyers
We are the experts in either beating or having criminal charges
withdrawn AND/OR obtaining the least restrictive penalty available. This is
because no matter which option you choose within our tailored Options at Law
you will be dealing with experienced criminal lawyers who can make sure the
evidence is not only obtained properly but also that your case is prepared and
presented to the highest best practice standards possible. This is also done
without breaking your pocket.
2. We give a Senior Defence Lawyer guarantee
No matter which option at law you choose, National Criminal Lawyers can
guarantee that a Senior Defence Lawyer will represent you. This means that with
our over 25 years of Combined criminal law experience you will get the best
result possible.
3. National Criminal Lawyers are the best defenders of your rights
At National Criminal Lawyers we know that Criminal Law is a matter of
Human Rights. For this reason, we take pride and passion in representing our
clients. This pride and passion to assist those charged with an alleged or
actual breach of the criminal law is to us a matter of righteous necessity and
in that sense, you can always rest assured that National Criminal Lawyers are
the best defenders of your rights. This true not only when the police have just
simply got it wrong OR if they have got it right then we can speak with you and
make sure you get you the best result available.
If you have been charged with any Use Carriage Service to Menaceoffence our Team at National Criminal Lawyers are well
versed and specialists in having charges either withdrawn and otherwise
achieving favourable outcomes. Please contact our office on 02 9893 1889 or
visit www.nationalcriminallawyers.com.au for more information about your options.
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