Repeat ICT offence brings warning

Using a cell phone to annoy or harass another person has consequences beyond a fine or prison sentence, Crown Counsel Tanya Lobban pointed out earlier this month.

In the sentencing of Kenrick Trent Whittaker, Ms Lobban asked the court to consider another provision of The Information and Communications Technology Authority Law. It states that in addition to imposing a fine up to $10,000 and a term of imprisonment up top one year, a magistrate may restrain the offender from using ICT services or networks.

Magistrate Grace Donalds said she could impose an injunction that would prohibit him from using ICT services for any period the court saw fit.

‘This clearly is a very serious matter,’ she told him. The magistrate found it disturbing that Whittaker, 23, had a previous conviction for the same offence.

In February 2006 he was fined $350 for using an ICT network to annoy and harass.

In July 2006, an incident occurred that led to three charges of misusing an ICT network and other charges. Whittaker pleaded not guilty and trial took place in May this year.

The magistrate heard evidence about the incident between Whittaker and a woman with whom he had been in a relationship. It took place at her residence. She was avoiding him and he sent her a message via cell phone.

During the trial, Whitaker admitted sending the message, but said it was joke. The magistrate did not accept that explanation because the tone of voice did not seem to an objective hearer to have been in jest.

The magistrate summarised the evidence relating to an injury the woman received that had led to a charge against Whittaker of assault causing actual bodily harm. In finding him not guilty, she noted a third person had been present and gave an account during the trial of what happened.

The magistrate found there were material inconsistencies and the Crown witnesses did not corroborate each other. She found Whittaker guilty of common assault, as it related to his pulling the woman by her hair.

Whittaker admitted one other ICT charge and the Crown asked to withdraw one.

Taking into account his previous offence, the magistrate fined him $500 for the first July 2006 ICT network offence. For the second, she sentenced him to three months imprisonment, but suspended the sentence for two years.

‘Please understand very clearly if you return to court and there is any question of conviction for a similar offence, the court will consider activating this suspended sentence,’ the magistrate told Whittaker.

‘Just desist from using the communication system in this manner,’ she said.

The fine for common assault was $250, for a total of $750.

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