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Legal Guide to Relevant Criminal Offences in Victoria

Legal Guide to Relevant Criminal Offences in Victoria

This guide reviews the various criminal offences that may apply to a person who is perpetrating technology-facilitated stalking and abuse.

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.

Crimes Act 1958 (Vic)

Summary Offences Act 1966 (Vic)

Criminal Code 1995 (Cth)

Telecommunications (Interception and Access) Act 1979 (Cth)

 

Further Information

1.1

 

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, email … (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

  • 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)

1.1. 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
  • 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.

1.3. 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.

1.5. 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.

Criminal Code 1995 (Cth)

1.1. Dealing in identification information (section 372.1)

It is an offence to make, supply or use the identification information of another person to pretend to be, or to pass oneself off as another person for the purpose of committing or facilitating a Commonwealth indictable offence (meaning, a crime under a Commonwealth Act that is punishable by imprisonment for more than 12 months).

Maximum penalty: Imprisonment for 5 years.

  • For example, a person makes a social media account in his ex-partner’s name, pretending to be her. He posts her personal details and tries to add her friends so they see the account, If this is done for the purpose of harassing the ex-partner, for example, he starts posting offensive comments while pretending to be her (see s 474.17)
  • This is commonly referred to as ‘identity fraud’

1.2. Interceptions devices (section 474.4)

It is an offence to manufacture, advertise, sell, or possess an interception device.

Interception device includes an apparatus or device that is capable of intercepting a communication passing over a telecommunication system that could reasonably be regarded as having been designed for that purpose (see s 473.1).

Maximum penalty: Imprisonment for 5 years.

  • For example, it is an offence for a person to have in their possession an audio bug device used to intercept phone calls covertly 

1.3. Offences relating to the use of a carriage service (sections 474.15 and 474.17)

A ‘carriage service’ means a service for carrying communications by means of guided and/or unguided electromagnetic energy (s 7 Telecommunications Act 1997 (Cth)). Examples include:

  • Telephone services
  • Internet access services
  • Voice over Internet Protocol (VoIP) services (eg, Skype)

Using a carriage service to make a threat to kill (s 474.15)

It is an offence for a person to use a carriage service to make a threat to a person that they will kill them or a third person, intending them to fear the threat will be carried out. It is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.

Maximum penalty: Imprisonment for 10 years.

  • For example, sending a person a text message, email or instant message or a telephone or videoconference call where they threaten to kill their ex-partner or her child

Using a carriage service to make a threat to cause serious harm (s 474.15)

It is also an offence for a person to use a carriage service to make a threat to a person that they will cause them or a third person serious harm, intending them to fear the threat will be carried out.  It is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.

Maximum penalty: Imprisonment for 7 years.

  • For example, sending a person a text message, email or instant message or a telephone or videoconference call where they threaten to break the limbs of their ex-partner or her child

Using a carriage service to menace, harass or cause offence (s 474.17)

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.

Maximum penalty: Imprisonment for 3 years.

  • For example, sending a person a large volume of offensive text messages, emails or instant messages or a telephone or videoconference calls

Telecommunications (Interception and Access) Act 1979 (Cth)

1.1. Interception of telecommunications (section 7)

It is an offence for a 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.

Interception of a communication passing over a telecommunications system means listening or recording the communication without the knowledge of the person making the communication. 

There are limited exceptions, for example, where there was a warrant issued.

Maximum penalty: Imprisonment for 2 years (see s 105).

  • For example someone pays a person to set up a phone bug on their ex-partners phone without their knowledge, to listen in on their calls
  • Due to the definition of passing over (s 5F) it would not be an offence to read a person’s inbox of emails or SMS messages without their consent because the messages have already been received and are not in transit

1.2. Dealing with intercepted information (section 63)

A person must not communicate to another person, make use of, or make a record of, or give evidence in a proceeding any information that has been intercepted (subject to the other provisions of Part 2-6).

Maximum penalty: Imprisonment for 2 years (see section 105).

1.3. Civil remedies relating to unlawful interception and communication (section 107A)

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.

Some orders the court can make are:

  • An order declaring the interception or communication was unlawful
  • An order that the defendant pay to the protected person damages
  • An injunction

Further Information

LEGAL ADVICE: At any stage, it is important for a person to obtain legal advice about their situation and the options available to them. Please see the legal services directory in the Support page for referrals to the nearest legal service.

1.1 Terminology

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.

Whilst 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 (including in non-heterosexual relationships), in the vast majority of reported domestic violence 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.

Definitions

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 minor theft), are known as summary offences. Summary offences usually have a maximum penalty of no more than 2 years 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 2 years.

Charge
When a person is charged with an offence, it means that 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 that person 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 set the dollar amount for one penalty unit; this value is updated on 1 July each year. As of 1 July 2015: one penalty unit = $151.67. Therefore, an offence with a maximum penalty of a fine of 50 penalty units will have a maximum fine of $7,583.50.

DISCLAIMER: The use of technology-facilitated violence is a developing area of the law. The legal information, examples and scenarios contained in the guide are intended to explain the law in general terms only and are not legal advice. They cannot be relied upon or applied by readers in their own cases. Each set of circumstances needs to be looked at individually. You should seek legal advice about your own particular circumstances.