The Phantom Menace: Unlawful Use of Carriage Services Under the Microscope

In this instalment of Lavan’s Corporate Disputes update we will consider section 474.17 of the Criminal Code Act 1995 (Cth) (Act), namely, using a carriage service to menace, harass or cause offence.  This provision has experienced a sharp increase in judicial consideration in 2022, and by all indications this trend has continued into the first half of 2023. 

Overview

Under s 474.17(1), a person commits 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.

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

Judicial consideration

Text messages, phone calls, emails, Facebook Messenger and X [formerly Twitter] are just some examples of technologies which have been found to fall within the scope of ‘carriage services’.[1] 

One recent decision concerning s 474.17 was Clarke (a pseudonym) v R [2023] VSCA 103, which related to an application for leave to appeal on the ground of severity of sentence.

The applicant plead guilty to a number of charges, including, use of a carriage service to menace, assault, making threats to inflict serious injury and attempted arson. The charges arose in the context of the breakdown of the applicant and victim’s domestic relationship. Between 24 and 28 September 2021, the applicant contacted the victim over 200 times.  One example of the messages sent included “I swear if you keep you ignoring me by the end of the day we are Gunna have trouble I have nothing to lose anymore since you put me here. I will hunt you down.” The Court imposed a total effective sentence of 5 years and 2 months imprisonment. Part of this sentence included 10 months imprisonment (4 months cumulation) for the use a carriage service to menace contrary to s 474.17.

The applicant sought leave to appeal against the sentence on three grounds. Only the third ground related to the charge under s 474.17, namely, that the sentence was manifestly excessive. However, ultimately the Court refused leave to appeal and upheld the sentence.  

Lavan comment

Whilst s 474.17 has predominantly been raised in the course of family law disputes, it is by no means confined to this field. Section 474.17 has in fact been considered in the context of defamation proceedings[1], and is an important factor to take into account when making a defamation claim. 

For further information or advice in relation to Commonwealth criminal offences, contact Cinzia Donald, Partner, in Lavan’s Corporate Crime & Investigations Team.