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Legal Guides to relevant Criminal Offences

Legal Guides to relevant Criminal Offences

A review of Queensland criminal offences relating to technology-facilitated domestic violence 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.

Note: The Invasion of Privacy Act 1971 (Qld)and Domestic and Family Violence Protection Act 2012 (Qld) also contain relevant offences – these offences are covered in the Legal Guide to Surveillance Legislation and the Legal Guide to Domestic Violence Protection Orders.

Criminal Code 1899 (Qld) (‘the Act’)

 

Criminal Code 1899 (Qld) (‘the Act’)

1.1. Observations or recordings in breach of privacy (section 227A)

In a private place or engaged in a private act: section 227A(1)

It is an offence for a person (person A) to observe or visually record another person (person B) without person B’s consent and in circumstances where a reasonable adult would expect to be afforded privacy, when:

  • person B is in a private place; or
  • person B is engaging in a private act and the observation or visual recording is made for the purpose of observing or visually recording a private act

Maximum penalty: Imprisonment for two years.

  • Scenario: Installing a camera in a bathroom to film a person using it (R v VAB [2014] QDC 113).

Examples provided in the Act –  

Circumstances where a reasonable adult would expect to be afforded privacy:

  • A person changing in a communal change room at a swimming pool may expect to be observed by another person who is also changing in the room but may not expect to be visually recorded. 

  • A person who needs help to dress or use a toilet may expect to be observed by the person giving the help but may not expect to be observed by another person.

A person’s genital or anal region: section 227A(2)

It is also an offence for a person (person A) to observe or visually record another person (person B’s) genital or anal region without person B’s consent and in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region, when the observation or visual recording is made for the purpose of observing or visually recording person B’s genital or anal region.

Maximum penalty: Imprisonment for two years.

Example provided in the Act: Using a mobile phone in a public place to take photos of women’s underwear under their skirts without their consent.

1.2. Distributing prohibited visual recordings (section 227B)

A visual recording made in contravention of section 227A (see section 1.1 above) is a prohibited visual recording.

It is an offence for a person (person A) to distribute a prohibited visual recording of another person (person B), when person A has reason to believe that it is a prohibited visual recording and person A does not have person B’s consent.

Maximum penalty: Imprisonment for two years.

See section 227B of the Act for the meaning of ‘distribute’.

1.3. Obscene publications and exhibitions (section 228)

It is an offence for a person to knowingly, and without lawful justification or excuse, publicly sell, distribute or expose for sale:

  • any obscene book or obscene printed or written matter
  • any obscene computer generated image
  • any obscene picture, photograph, drawing, or model
  • any other object tending to corrupt morals

It is also an offence for a person to knowingly, and without lawful justification or excuse, expose to view in any place to which the public are permitted to have access:

  • any obscene picture, photograph, drawing, or model
  • any other object tending to corrupt morals

 Maximum penalty: Imprisonment for two years.

1.4. Unlawful stalking (sections 359A–E)

It is an offence for a person to unlawfully stalk another person (s 359E).

Maximum penalty: Imprisonment for five years.

It is a more serious offence if a person unlawfully stalks another person and

  • uses, or intentionally threatens to use, violence against anyone or anyone’s property; or
  • possesses a weapon.

In such a case the maximum penalty is imprisonment for seven years. 

Unlawful stalking has a very specific meaning, defined in section 359B of the Act.

Four elements make up the conduct of unlawful stalking:

  1. It is intentionally directed at a person (‘stalked person’ / ‘aggrieved’).
  2. It is engaged in on more than one occasion. Or, if the conduct lasts for a long time, it is engaged in on any one occasion.
  3. It consists of one or more particular behaviours (see below).
  4. it causes actual detriment to the aggrieved and it is reasonable in all the circumstances for the detriment to arise.

Particular behaviours related to technology-facilitated stalking:

  • contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology
  • leaving offensive material where it will be found by, given to or brought to the attention of, a person (eg, posting offensive material on the aggrieved person’s Facebook wall)
  • giving offensive material to a person, directly or indirectly (eg, emailing offensive pictures to the aggrieved person)
  • an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence
  • an act of violence, or a threat of violence, against, or against property of, anyone, including the respondent

Detriment may include the following:

  • apprehension or fear of violence to, or against property of, the aggrieved or another person
  • serious mental, psychological or emotional harm
  • prevention or hindrance from doing an act a person is lawfully entitled to do eg. a person no longer walks outside the person’s place of residence or employment or a person significantly changes the route or form of transport the person would ordinarily use to travel to work or other places
  • compulsion to do an act a person is lawfully entitled to abstain from doing eg. a person sells a property the person would not otherwise sell

A court may also make a restraining order in relation to this offence. See section 359F for more information.

1.5. Computer hacking and misuse (section 408E)

It is an offence for a person to use a restricted computer (password protected) without the consent of the person who controls the computer.

Maximum penalty: Imprisonment of two years.

The maximum penalty increases if the person causes or intends to cause detriment or damage, or gains or intends to gain a benefit.

  • Scenario: A person hacks into his ex-partner’s computer in order to obtain personal or sensitive information about her.

1.6. Extortion (section 415)

It is an offence for a person (‘the demander’) to demand something of another person, when the demand is accompanied by a threat to cause a detriment to any person other than the demander, and the demander has the intention of gaining a benefit for any person or causing a detriment to any person other than the demander.

Penalty: Imprisonment for 14 years.

  • Scenario: Where a person threatens to release a sex tape of his ex-partner if she does not meet his demand to return to the relationship or to give him a sum of money.

The Act defines benefit to include property, advantage, service, entertainment, the use of or access to property or facilities, and anything of benefit to a person whether or not it has any inherent or tangible value, purpose or attribute.

Note: The Invasion of Privacy Act 1971 (Qld) also contain relevant offences – these offences are covered in 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

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

 

Further information

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 a 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 but 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 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 Penalties and Sentences Regulation 2005 (Qld) states the dollar amount for one penalty unit. As of 1 July 2015: one penalty unit = $117.80.

Therefore, an offence with a maximum penalty of a fine of 50 penalty units will have a maximum fine of $5,890.00.

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.