Is it a Crime to Send Abusive or Threatening Messages to Someone in NSW?

Sahar Adatia and Jimmy Singh.

A 20-year-old man from Perth who left threatening and abusive telephone messages for Western Australia’s Premier because he was angry about the COVID-19 vaccine mandate has avoided jail, instead receiving a $3,000 fine.

Zayvier Tamer Rose was one of two men who left numerous menacing messages on Premier Mark McGowan’s mobile phone in November 2021.

The messages included a series of colourful epithets including that he was a “smelly-faced c***” and to “go f*** yourself”, along with statements such as “you deserve to die in a hole” and one which described him as “Hitler”.

Mr Rose was one of two men charged after the Premier publicised that he had received the hostile messages, which included one threatening to behead his wife and children.

The Premier’s mobile phone number had been made public last year amid backlash over his handling of the COVID-19 pandemic.

On 25 January 2022, Mr Rose faced Armadale Magistrates Court where he pleaded guilty to the charge of “making a false statement which indicated a threat” over the calls.

Inside the court, it was heard Mr Rose was not responsible for the beheading message, however, that he was behind that which stated the Premier to “go f*** yourself”.

“No-one likes you,” Mr Rose continued in the message.

“You deserve to die in a hole. The world’s going to be after you. 

“F*** you for mandating the vaccine you p****** looking c***.” 

According to the police prosecutor, Premier McGowan perceived the messages as a threat to himself and his family.

Defence Lawyer Explains Mr Rose Got Drunk and Emotional After Losing His Job

To Mr Rose’s defence, his lawyer said the calls were made while the 20-year-old was out drinking with a friend, during which time they discussed losing their jobs because of the vaccine mandate.

Mr Tudori labelled his client’s actions as “stupid”.

“He just felt aggrieved that there was a mandate he had to be vaccinated, and he was going to lose his employment over it,” Mr Tudori said.

“A 20-year-old, he got himself drunk and concerned and all emotional, and the Premier’s number was on Facebook and he rang it.”

It was heard Mr Rose was not an anti-vaxxer, but had expressed concerns that not enough research into the vaccine had been carried out, while various friends of his had suffered side effects from the jab.

It was also heard Mr Rose had since been vaccinated, and while he had initially been dismissed from his job as an apprentice electrician, his employer was now supporting him.

Ultimately, the magistrate decided Mr Rose’s actions had shown a degree of immaturity and deemed a fine was an appropriate penalty.

In deciding the $3,000 penalty, the magistrate took into account the man’s young age, his early guilty plea and his remorse.

Intimidation Laws, Offences and Penalties in NSW

Generally speaking, rude, offensive or boorish behaviour does not necessarily amount to conduct amounting to fear of physical violence. This has been established by the case of Mahmoud v Sutherland [2012] NSWCA.

However, it is a criminal offence carrying up to 5-years imprisonment and/or $5,500 fine to stalk or intimidate someone with the intention of causing him/her to fear physical or mental harm, prescribed by section 13 Crimes (Domestic and Personal Violence) Act 2007 (NSW).

A person is considered to intend to cause fear of physical or mental harm if he/she knows that the conduct is likely to cause fear in the other person.

To prove guilt, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.

What does ‘intimidating’ mean? An example is the case of R v Turnbull (No 5) [2016] NSWSC where it was held that the concept of official action being taken by a public officer against a person, even if it involved rude, aggressive or upsetting language or alleged overzealous action, does NOT fall within the section 13 offence explained above.

‘intimidation’ is also defined in section 7 as conduct including cyberbullying amounting to harassment or molestation of the person. Cyberbullying may be the bullying of a person by publication or transmission of offensive material over social medial or via email.

For the meaning of ‘offensive conduct’ click here.

Intimidation is also defined as an approach made to a person by any means, including telephone, text messages. Email or other technologically assisted means, that causes the person to fear for his/her safety. 

Furthermore, ‘intimidation’ is also defined as conduct that causes a reasonable apprehension of injury to the person or another person with whom the person has a domestic relationship, or violence to any person, or damage to property, or harm to an animal that belongs or belonged to, or is or was in the possession of, the person or another person with whom the person has a domestic relationship. Further to this, it includes conduct amounting to the coercion or deception or, or a threat to, a child to enter into a forced marriage.

When a court determined whether or not conduct amounts to intimidation, a court may have regard to any pattern of violence, especially violence consisting of a domestic violence offence, in the person’s behaviour.

There is also a further offence under the commonwealth Crimes Act of using a carriage service to threaten.

The Penalties for Conveying False Information that a Person or Property is in Danger

While it may not seem obvious, conveying false information that a person or property is in danger is a criminal offence and one that can land you in trouble.

This is because it is against the law to deliver information that is false or misleading which is likely to make the person to whom the information is conveyed fear for the safety of a person or property.

In NSW, the offence of making false statements that a person or property is in danger is outlined in section 93Q of the Crimes Act 1900.

Section 93Q makes clear that a person who conveys information that the person knows to be false or misleading, and that is likely to make the person to whom the information is conveyed fear for the safety of a person or of property, or both, can face a maximum penalty of five years in jail.

Conveying information can occur through any means, including making a statement orally, sending a document or transmitting an electronic or other message.

The information can also be conveyed through other means including making a report to police or other authorities, or calling an emergency hotline.

To be guilty of this offence, the prosecution must prove beyond reasonable doubt that the person:

  • Conveyed the information to a person
  • Knew the information was false or misleading
  • Carried this out knowing it was likely to make the person to whom it was conveyed fear for the safety of a person or property or both.

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