By Jimmy Singh & Tayla Regan
With the rise of technology and communication through means of smart phones, the internet & social media, it’s not surprising that Australia have implemented laws to punish those who misuse it in order to protect the community.
Technology has also made it much easier to instantly reach out to people all over the world. These days, to communicate, we can simply send an email, text, make a phone call or use social media.
While the advances in technology have allowed friends and family to stay in touch, arguably this has also made way for cyber bullying, and other forms of threatening and offensive behaviour.
As times have changed, the law has had to keep up for the protection of the community.
The Case of Shane Gerada – Cyber Bullying
A reported case of 21 year old Shane Gerada, had sent over 300 threatening text and MySpace messages in the course of a few months to his 17 year old former best friend, Allem Halkic in 2009.
Shane had sent numerous messages to Allem, including some expressing, “Don’t be surprised if u get hit sum time soon. You f..ked with the wrong person.”, “Ur all mouth and no action, wait till I get my hands on u, and I’m telling u now ill put you in hospital.”.
Shane sent further messages through MySpace to a boyfriend of a girl that Allem was having an affair with, one which expressed, “its payback for him”.
The case involved over 300 threatening text and MySpace messages in the course of a few months.
Sadly, 17 year old Allem jumped off Melbourne’s West Gate Bridge the day after receiving those threatening messages from Shane.
Shane was convicted and sentenced to 200 hours of community service work.
The case was controversial due to the reported lenient punishment given to Shane Gerada, the best friend of Mr Halkic at the time.
For reasons such as this, Commonwealth law has stepped in and created the offences of ‘using a carriage service to make a threat, menace, harass or hoax threat under sections 474.15, 474.16 and 474.17 of the Criminal Code Act 1995.
The Case of R v Hampson  QCA 132 – Using a Carriage Service to Menace/Harass/Offend
Autistic 29 year old Mr. Hampson was convicted and sentenced on 24 March 2011 for using a carriage service to menace, harass or cause offence- involving a series of offensive and trolling comments on a tribute page on Facebook by Mr. Hampson. He also had a prior conviction of the same kind of offence in 2008.
The case involved Mr. Hampson subscribing to, and subsequently posting very offensive and insulting material on some tribute pages on the social networking site, Facebook. The pages were tributes to the deaths of 2 children aged 12 and 8.
Mr. Hampson had subscribed to Facebook under an assumed name. It was under the assumed name that he was posting sexually explicit and highly offensive comments and material to the tribute pages.
Police discovered the posts to have originated from Mr. Hampson’s computer at his home in Tarragindi, Brisbane.
Some of the things posted onto the tribute pages by Mr Hampson included:
- “I tried hiding the body under the Hunter St drains where I finished raping her but obviously the cops found it.”
- “Pedo strikes again”
- “she had the ass of an 8 year old girl”
- “I got mad, she wouldn’t lick her own shit off my c-ck so I murdered her, Im sure you all would have done the same.”
He was convicted for the offences under s474.17 (using a carriage service to menace, harass or offend).
Mr Hampson was sentenced to a term of 2 years imprisonment but released immediately upon the conditions of entering into a two year good behaviour bond, and forfeiting the sum of $1,000.
What is a ‘Carriage Service’?
A carriage service is broadly defined in S7 of the Telecommunications Act 1997 as any service which carries communications by means of ‘guided or unguided electromagnetic energy’.
Essentially, a carriage service can be any form of communication- text messages, telephone calls, emails, and social media which includes Facebook or Twitter.
If you harass or threaten another person through any of these forms, you will be committing an offence under the Commonwealth Criminal Code Act 1995 which attract heavy penalties of imprisonment.
What are the Penalties for Using a Carriage Service to Make a Threat to Kill/Harm, Harass, Menace or Hoax Bomb Threat?
Hoax Bomb Threat
There is a term of up to 10 years imprisonment for using a carriage service for a hoax threat i.e. fake bomb threat (s474.16 of the Criminal Code Act 1995). You will only be guilty for this if you use a carriage service to send a communication with the intention of causing a false belief that an explosive/dangerous/harmful substance has been left in a place, or will be left in a place.
Threaten to Menace/Harass/Offend
There is a term of up to 3 years imprisonment for using a carriage service to menace, harass or cause offence (s474.17 of the Criminal Code Act 1995). You will only be guilty of this if you use a carriage service in a way that reasonable people would consider (in all the circumstances) as being menacing, harassing or offensive.
Threaten to Kill/Cause Serious Harm
There is a term of up to 10 year imprisonment for using a carriage service to threaten to kill another person; Where the threat is to cause serious harm to another person, the term of imprisonment is up to 7 years. (s474.15 of the Criminal Code Act 1995). Here, it’s still an offence where the other person receiving the threat didn’t actually fear that the threat would be carried out provided that you intended the other person to fear that the threat will be carried out.
Defences to Charges of Using a Carriage Service to Threaten
As any experienced criminal defence lawyer can tell you, the Criminal Code Act specifies certain legal defences to this charge.
Section 473.5 of the Act says, that in relation to a charge of ‘use carriage service’, you will not be guilty where:
- you are a carrier, and you’re acting solely in the capacity as a carrier; or
- you are a carriage service provider, and you’re acting solely in the capacity as that; or
- You are an internet service provider, and you’re acting solely in that capacity; or
- You are an internet content host, and you’re acting solely in that capacity.
What if a Threat is Made in a Non-Electronic Document?
There are heavy penalties, including terms of imprisonment of up to 10 years, where a threat is made on a document (which is not made by electronic means). You can still be charged with a criminal offence where you have made certain threats in a document to another person.
Section 31 of the Crimes Act 1900 (NSW) says that you will be guilty of an offence if the police can prove beyond reasonable doubt the following:
- You sent or delivered (or indirectly or directly caused to be received) a document; and
- You did this intentionally or recklessly; and
- Where that document contained contents threatening to kill or inflict bodily harm on a person; and
- You had knowledge of the contents of that document.
You will still be guilty if the document that you sent didn’t actually reach the other person.