A Guide on the Penalties for Harassing, Offending or Menacing Using a Phone

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By Sahar Adatia and Jimmy Singh.

Harassing or offending phone calls can be one of the most stressful and alarming events a person experiences in terms of their privacy.

From calls that are threatening to those simply unwanted, harassment via phone – or even text messages and other communication platforms – is both abusive and troublesome.

Even more is it adverse when 300 menacing calls and messages are made.

If you thought this was any kind of exaggeration, then look no further than the case of Carss Park man, Gerard Vamadevan, who this week appeared in Sutherland Local Court charged with using a carriage service to menace, harass or offend after allegedly bombarding a family with more than 300 threatening and abusive calls and messages.

In fact, details of the case show the 51-year-old Sydney man posed as a TV executive, offering an acting role to a teenage girl, and when her family tried to intervene, the man began the menacing communication.

“Sinister Intentions”: Mr Vamadevan Approaches 17-Year-Old Girl in Cronulla Mall Promising to Land Her “Acting Role”

On 31 March 2019, Mr Vamadevan approached a 17-year-old girl in Cronulla mall in Sydney’s south, introducing himself as “Gerry” and telling her he could get her “an acting role”.

With the supposed TV executive’s promises looking slick, the young girl exchanged contact details with Mr Vamadevan.

The man then contacted the girl via social media app Snapchat and set up a meeting for a coffee.

However, when the girl replied asking if she could bring her parents along to the meeting, the phoney talent scout barraged her and her family with more than 300 hostile calls and messages within the space of three days as they tried to intervene.

Police allege Mr Vamadevan had “sinister intentions” when he approached the girl.

Her family members were quick to become suspicious of his motives, at which point her brother and father contacted the man demanding he stop communicating with the girl.

**Court Hears Mr Vamadevan Vowed to make Teenager so Famous she would become “Network Sl*t”**

As Mr Vamadevan faced Sutherland Local Court yesterday, it was heard the man promised to make the teenage girl so famous she would become a “network sl*t”.

Furthermore, documents tendered to the court alleged that Mr Vamadevan also stated that he was going to put her phone number on a “sugar dating website” for older men.

At one point, he allegedly messaged: “Sl*t, open your legs sl*t”.

The prosecution said it was only the victim’s “smarts” that discouraged her from going to the coffee meeting that Mr Vamadevan attempted to set up.

“The defendant didn’t achieve his ultimate aim of meeting with [the] victim. It was only the victim’s smarts and self-preservation that stopped more serious charges,” police prosecutor Andrea Rodriguez said.

Ms Rodriguez also informed Mr Vamadevan avoided police attempts to discuss the incident.

“The defendant went to a considerable amount of effort not to attend meetings with police,” she said.

“It was blatant attempt to not face matters before this court. It was only sheer coincidence he was identified and brought before the court.”

Mr Vamadevan Denied Bail, Due to Appear in Court Again in September

In the court, Mr Vamadevan refuted he had avoided police and said that he had made multiple attempts both in person and via email to contact officers.

Meanwhile, Magistrate Peter Bugden denied the man bail, stating that “if he’s avoided police in the past there’s every possibility he won’t turn up in future”.

Mr Vamadevan remains behind bars and is due to appear in court on September 17.

Understanding Phone Harassment

Phone harassment is generally understood as any form of unsolicited telephone communication that is threatening, obscene, or unwanted.

It can come in many shapes and forms, all being equally hostile and challenging to stop.

Examples of phone harassment may include:

Calling the telephone to make it continually ring
Making obscene comments, requests or suggestions to the person who answers
Refusing to identify oneself over the phone
Making repeated telephone calls where the conversation consists only of provocation, especially after the receiver has requested not to be contacted again
Attempting to steal your financial or personal information over the phone
Making a phone call and using heavy breathing or silence with the intent to intimidate

Such forms of harassment indicate a clear intent of the person wanting to annoy, threaten, or even harm you.

What the Law says about Using a Carriage Service to Menace, Harass or Offend in NSW

As criminal lawyers in Sydney, we come across these cases often. It is illegal to use a carriage service to menace, harass, or offend.

As reflected in Section 7 of the Telecommunications Act 1997 (Cth), a carriage service means a service for carrying communications by means of guided and/or unguided electromagnetic energy.

Examples of a carriage service include text messaging, phone calls, social media, and emailing.

Using a carriage service to menace, harass or offend can thus range across a variety of activities. Some examples include:

Calling a random phone number from your mobile using a private number and hurling insults or threats to the person who answers
Sending multiple text messages to a person every day who refuses to date you
Using your laptop to post an update on Facebook referring to somebody as ugly
Posting a photo of your ex-partner on the internet linking it to their Instagram account

Table Of Contents

A Guide on the Penalties for Using a Carriage Service to Menace, Harass, or Offend

A Guide on the Penalties for Using a Carriage Service to Menace, Harass, or Offend

In NSW, the offence of using a carriage service to menace, harass or offend carries a maximum penalty of three years’ imprisonment under section 474.17 Criminal Code Act 1995 (Cth).

However, if the matter is finalised in the local court, the penalty is restricted to 12-months in gaol or a fine of $12,600.

If the offender is a corporate body, the maximum penalty is $63,000 in the Local Court.

Using a carriage service is using a device that carries communications by using guided and/or unguided electromagnetic energy, such as internet, social medial, text messages etc.

Anyone accused of this offence will only be found guilty by a court if the prosecution proves the following beyond reasonable doubt:

The person accused had used a carriage service; and
He/she did this in a way where a reasonable person would consider it as offensive, menacing or harassing.

As the vase of Monis v The Queen [2013] HCA 4 outlines, a reasonable person is someone who is ‘reasonably tolerant & understanding, and reasonably contemporary in his/her actions.’

What is ‘offensive’? Generally, this is considered behaviour that’s calculated or likely to arouse significant anger, resentment, outrage, disgust or hatred in a mind of a reasonable person in all the circumstances.

What doesn’t constitute ‘offensive’? What wouldn’t be considered offensive conduct is if the conduct merely wounds or hurts the feelings of the alleged victim.

A person charged with this offence will be found ‘not guilty’ if a defence applies to that person. Some defences to this charge include, mental illness, involuntary behaviour, mistaken identity, or if you are an internet, carrier or carriage service provider, or content host of the service internet.

Other defences include duress or necessity.

For more guidance or information on the law on using a carriage service to harass, threaten or menace in Australia, contact our experienced Sydney based criminal lawyers.

Our team offer a free first consultation and are available 24/7 on (02) 8606 2218.

Published on 09/09/2019