Legal Guide to Relevant Criminal Offences in Victoria

Transcription

1 Legal Guide to Relevant Criminal Offences in Victoria A review of Victorian criminal offences relating to technology-facilitated family violence and abuse SOME NOTES Language of victim vs survivor Some women who are experiencing, or who have experienced, domestic violence use the term victim of domestic violence to describe themselves. Others believe the term survivor of domestic violence more accurately reflects their experience. While acknowledging that each woman s experience is unique and individual to her circumstances, for consistency, these guides will refer to women who are experiencing, or who have experienced, domestic violence as victims of domestic violence. Gender and language While domestic violence can happen in many circumstances, in the vast majority of reported cases, men are the perpetrators and women the victims. For this reason these guides use he to refer to perpetrators and she to refer to victims. This is not intended to exclude other situations. Terminology Criminal offence (or offence) A criminal offence is an offence against the State. It is commonly referred to as breaking the law. Summary offence Less serious offences (such as parking violations) are known as summary offences. Summary offences normally have a maximum penalty of no more than 12 months imprisonment or are not punishable by imprisonment at all. Indictable (serious) offence More serious offences (such as murder, manslaughter, sexual assault) are known as indictable offences. Indictable offences are punishable by imprisonment exceeding 12 months. Charge When a person is charged with an offence, it means the police have formally accused that person of committing an offence. Conviction When a person is convicted of an offence, it means that person has either pleaded guilty to committing the offence, or a court has found them guilty of committing the offence. Penalty unit A penalty unit describes the amount payable for a fine. For example, some offences have a maximum penalty of a fine of 100 penalty units. Others have a maximum penalty of a fine of 50 penalty units. Penalty units are used instead of dollar amounts because the rate for penalty units is indexed for inflation and may therefore change from time to time. The Department of Treasury and Finance sets the dollar amount for one penalty unit. This value is updated on 1 July each year. As of 1 July 2014: one penalty unit = $ Therefore, an offence with a maximum penalty of a fine of 50 penalty units will have a maximum fine of $7,380

2 Relevant Criminal Offences Some forms of technology- facilitated stalking and abuse are against the law. If it is unlawful, then the person responsible can be charged with a criminal offence. This guide looks at the offences under Victorian and Commonwealth law that are relevant to technology- facilitated stalking and abuse. Crimes Act 1958 (Vic) Part I Offences > Division 1 Offences against the person - offence to make threat to kill (s 20) - offence to make threat to inflict serious injury (s 21) - offence to stalk a person, including contacting by text, (s 21A) - offence to engage in reckless conduct that may place another person in danger of death or serious injury (ss 22 and 23); e.g. a man publishes on the internet an advertisement with his ex- girlfriend s picture, name, and address and states on the advertisement that she enjoys rough sex and rape scenarios - offence to extort (make a demand of another person) with a threat to kill or inflict injury on a person or to destroy property (ss 27 and 28) - offence to threaten to assault another person (s 31) - offence to groom a child under the age of 16 for sexual conduct whether communicating (including electronically) directly with the child or with a person whose care, supervision or authority the child is under (s 49B) - offence to use threats, intimidation, or fraud to procure a person to take part in an act of sexual penetration (s 57) Part I Offences > Division 2 Theft and similar or associated offences > Fraud and blackmail - offence to blackmail a person (s 87) Part I Offences > Division 2AA Identity crime - offence to use or supply or possess identification information belonging to someone else to commit an indictable offence or to facilitate the commission of an indictable offence (s 192B) note that there are mirror provisions in the Commonwealth, NSW, and SA. Part I Offences > Division 3 Criminal damage to property - offence to threaten to destroy or damage any property belonging to another person (s 198) - offence to, without authorisation, access, modify, or impair data held in a computer with intent to commit serious offence (s 247B) - offence to, without authorisation, access or modify restricted data held in a computer (s 247G) - offence to destroy or otherwise make unavailable a document or other thing of any kind that may be required as evidence in a legal proceeding (s 254) Part I Offences > Division 10 Conspiracy - offence to conspire to commit an offence in Victoria or outside Victoria (ss 321 and 321A) Part I Offences > Division 11 Incitement

3 - offence to incite another person to commit an offence in Victoria our outside Victoria (ss 321G and 321H) Part I Offences > Division 12 Attempts - offence to attempt to commit an indictable offence in Victoria or outside of Victoria (ss 321M and 321O) Summary Offences Act 1966 (Vic) On 15 October 2014 the Victorian Parliament passed the Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 (Vic), which amended the Summary Offence Act 1966 (Vic) to create new offences, including distributing an intimate image or a threat to distribute an intimate image. These offences are found in Part I, Division 4A: Observation or visual capturing of genital or anal region and distribution of intimate images Observation of genital or anal region (section 41A) This is commonly known as the upskirting offence. It is an offence for a person to intentionally observe, with the aid of a device, another person s genital or anal region in circumstances in which it would be reasonable for that person to expect that his or her genital or anal region could not be observed. It does not matter that the other person (the person being observed) is in a public place when this offence occurs. Maximum penalty: Imprisonment for three months. Scenario:! A woman wearing a skirt is walking up a staircase. A person walks behind the woman and uses a mirror to look under her skirt. This person has committed an offence against s 41A. Relevant exceptions (s 41D): - if the other person has consented, expressly or impliedly, to the observation - if the person making such an observation does so by accessing the Internet 1.2. Visually capturing genital or anal region (section 41B) It is an offence for a person to intentionally visually capture another person s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured. It does not matter that the other person (the person being visually captured) is in a public place when this offence occurs. Maximum penalty: Imprisonment for two years. Relevant exceptions (s 41D): - if the other person has consented, expressly or impliedly, to the visual capture

4 - if the visual capturing is made by accessing the Internet This offence fills in a gap left by the Surveillance Devices Act 1999 (Vic), which only covers the use of an optical surveillance device to record visually or observe a private activity Distribution of an image of genital or anal region (section 41C) It is an offence for a person who has visually captured an image of another person s genital or anal region (whether or not in contravention of section 41B) to intentionally distribute that image. Maximum penalty: Imprisonment for two years. Relevant exceptions (s 41D): - if the person the subject of the image expressly or impliedly consents to the distribution of the image for a particular purpose or a similar purpose - if the subject is a child and the image was captured in contravention of section 41B and in the particular circumstances a reasonable person would regard the distribution of that image as acceptable 1.4. Distribution of intimate image (section 41DA) This is commonly known as the revenge porn offence. It is an offence for a person ( A ) to intentionally distribute a intimate image of another person ( B ) to a person other than B, if the distribution of the image is contrary to community standards of acceptable conduct. Maximum penalty: Imprisonment for two years. Example provided in legislation:! A person (A) posts a photograph of another person (B) on a social media website without B's express or implied consent and the photograph depicts B engaged in sexual activity. When can an intimate image be distributed Person A can distribute an intimate image of person B only if B is not a minor (ie, an adult) and B consents, expressly or impliedly, to the distribution of the intimate image and the manner in which the intimate image is distributed Threat to distribute intimate image (section 41DB) It is an offence for a person ( A ) to make a threat to another person ( B ) to distribute an intimate image of B or of another person ( C ) and the distribution of the image would be contrary to community standards of acceptable conduct and A intends that B will believe, or believes that B will probably believe, that A will carry out the threat. Maximum penalty: Imprisonment for one year. Note: The Family Violence Protection Act 2008 (Vic) and the Surveillance Devices Act 1999 (Vic) also contain relevant offences these offences are covered in the Legal Guide to Family Violence Intervention Orders and the Legal Guide to Surveillance Legislation.

5 Criminal Code 1995 (Cth) Chapter 9 Dangers to the Community > Part 9.5 Identity Crime > Division 372 Identity Fraud Offences - Dealing in identification information (s 372.1) Chapter 10 National Infrastructure > Part 10.5 Postal Services > Division 471 Postal Offences - Using a postal or similar service to make a threat (s ) - Using a postal or similar service to menace, harass or cause offence (s ) Chapter 10 National Infrastructure > Part 10.6 Telecommunications Services > Division 474 Telecommunications Offences - Interception devices (s 474.4) - Using a carriage service to make a threat (s ) - Using a carriage service to menace, harass or cause offence (s ) 1.6. Dealing in identification information (section 372.1) It is an offence to use the identification information of another person ( the other person) to pretend to be, or to pass the offender off as, the other person for the purpose of committing an offence, or to facilitate the commission of an offence, and the offence is an indictable offence against a law of the Commonwealth or a foreign indictable offence. Maximum penalty: Imprisonment for five years. This is commonly referred to as identity fraud Postal offences (sections and ) It is an offence to use a postal service or similar service to make a threat to kill or a threat to cause serious harm (section ). Maximum penalty: Imprisonment for 10 years for threat to kill. Maximum penalty: Imprisonment for seven years for threat to cause serious harm. It is an offence to use a postal service or similar service to menace, harass, or cause offence (section ). Maximum penalty: Imprisonment for two years. Postal service or similar service is defined in section 470 Definitions. It does not include Interceptions devices (section 474.4) It is an offence to manufacture, advertise, sell, or possess an interception device. Maximum penalty: Imprisonment for five years. Interception device is defined in section Definitions.

6 1.9. Offences relating to the use of a carriage service (sections and ) A carriage service means a service for carrying communications by means of guided and/or unguided electromagnetic energy: section 7 of the Telecommunications Act 1997 (Cth). Examples of carriage services: - Telephone services - Internet access services - Voice over Internet Protocol (VoIP) services (eg, Skype) Using a carriage service to make a threat It is an offence for a person ( the first person ) to use a carriage service to make to another person ( the second person ) a threat to kill the second person or a third person and the first person intends the second person to fear that the threat will be carried out. [Section (1)] Maximum penalty: Imprisonment for 10 years. It is also an offence for a person ( the first person ) to use a carriage service to make to another person ( the second person ) a threat to cause serious harm to the second person or a third person and the first person intends the second person to fear that the threat will be carried out. [Section (2)] Maximum penalty: Imprisonment for seven years. It is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out. Using a carriage service to menace, harass or cause offence It is an offence for a person to use a carriage service in a way that reasonable persons would regard as being menacing, harassing or offensive (section ). Maximum penalty: Imprisonment for three years. Crimes Act 1914 (Cth) The Crimes Act 1914 (Cth) contains offences that relate to postal services carried out by the Australian Postal Corporation ( Australia Post ). postal message means: (a) a material record of an unwritten communication: (i) carried by post; or (ii) collected or received by Australia Post for carriage by post; or (b) a material record issued by Australia Post as a record of an unwritten communication: (i) carried by post; or (ii) collected or received by Australia Post for carriage by post Wrongful delivery of postal article (section 85N) It is an offence for a person to intentionally cause an article in the course of post to be delivered to, or received by, a person other than the person to whom it is directed or that person s authorised agent.

7 Maximum penalty: Imprisonment for one year Wrongful delivery of postal messages (section 85R) It is an offence for a person to intentionally cause a postal message to be delivered to or received by a person other than the person to whom it is directed or that person s authorised agent. Maximum penalty: Imprisonment for one year Sending false postal messages (section 85T) A person shall not: (a) intentionally and without a person s authority, submit, or cause to be submitted, to Australia Post as a postal message signed or to be sent by the person, a postal message that was not so signed or to be sent; (b) intentionally submit, or cause to be submitted, to Australia Post a postal message signed with the name of a fictitious person; (c) intentionally and without the authority of the person sending a postal message, alter the postal message; or (d) intentionally write, issue or deliver a document purporting to be a postal message that has been carried by post knowing that it is not such a message. Maximum penalty: Imprisonment for one year. Telecommunications (Interception and Access) Act 1979 (Cth) The Telecommunications (Interception and Access) Act 1979 (Cth) prohibits the interception of telecommunications, except in specified circumstances. telecommunications network means a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both, but does not include a system, or series of systems, for carrying communications solely by means of radio communication. telecommunications number means the address used by a carrier for the purposes of directing a communication to its intended destination and identifying the origin of the communication, and includes: (a) a telephone number; and (b) a mobile telephone number; and (c) a unique identifier for a telecommunications device (for example, an electronic serial number or a Media Access Control address); and (d) a user account identifier; and (e) an internet protocol address; and (f) an address. telecommunications service means a service for carrying communications by means of guided or unguided electromagnetic energy or both, being a service the use of which enables communications to be carried over a telecommunications system operated by a carrier but not being a service for carrying communications solely by means of radio communication. telecommunications system means: (a) a telecommunications network that is within Australia; or

8 (b) a telecommunications network that is partly within Australia, but only to the extent that the network is within Australia; and includes equipment, a line or other facility that is connected to such a network and is within Australia Interception of telecommunications (section 7) It is an offence for a person to intercept; authorise, suffer, or permit another person to intercept; or do any act or thing that will enable that person or another person to intercept a communication passing over a telecommunications system. The interception of a communication passing over a telecommunications system consists of listening or recording such a communication in its passage over that telecommunications system without the knowledge of that person making the communication. Maximum penalty: Imprisonment for two years (see section 105). Relevant exceptions: None; exceptions mostly relate to interceptions reasonably necessary in the course of performing legitimate work duties or pursuant to a warrant Dealing with intercepted information (section 63) Subject to the provisions of Chapter 26, a person must not communicate to another person, make use of, or make a record of, or give evidence in a proceeding information that has been intercepted, whether lawfully or in contravention of section 7. Maximum penalty: Imprisonment for two years (see section 105) Civil remedies relating to unlawful interception and communication The legislation provides for civil remedies for the unlawful interception of a communication passing over a telecommunications system, and the unlawful communication of such information (Part 2-10). Some orders the court can make are: - an order declaring the interception or communication, as the case requires, to have been unlawful; - an order that the defendant pay to the aggrieved person such damages as the court considers appropriate; - an order in the nature of an injunction (including a mandatory injunction); - an order that the defendant pay to the aggrieved person an amount not exceeding the amount that, in the opinion of the court, represents the total gross income derived by the defendant as a result of the interception or communication, as the case requires. Family Law Act 1975 (Cth) Under the Family Law Act 1975 (Cth), a person involved in family law proceedings may seek protection from the Family Law Courts in the form of injunctions Injunctions (section 114) The Family Law Courts have the power to grant injunctions in family law proceedings. Example: An injunction for the personal protection of a party to the marriage: section 114(1)(a).

9 The court has a wide power to grant injunctions it considers proper and which are related to family law proceedings Breach of injunction (section 114A) If a court has granted an injunction under section 114 against person A for the personal protection of person B and a police officer believes, on reasonable grounds, that A has breached the injunction by causing, or threatening to cause, bodily harm to B, or harassing, molesting or stalking B, the police officer may arrest A without a warrant.