STALKING AND INTIMIDATION

What is stalking?

The criminal offence of stalking or intimidation is found in section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The actual criminal offence is “stalking or intimidation with intent to cause fear of physical or mental harm”.

Under this section, a person who stalks or intimidates another person with the intention of causing the other person to fear physical harm or mental harm is guilty of an offence. The maximum penalty if a person is found guilty of stalking is 5 years imprisonment, a fine of $5,500 (50 penalty units), or both.

For the purposes of the criminal offence, it is also important to note the following:

1. the criminal offence of stalking includes where a person causes a person to fear physical harm or mental harm, where the person is someone with whom he or she has a domestic relationship;
2. a person “intends” to cause fear of physical harm or mental harm if he or she knows that the conduct is likely to cause fear in the other person; and
3. there is no need for a prosecution to prove that the person alleged to have been stalked or intimidated actually feared physical harm or mental harm.

It is also worth noting that a person who attempts to commit this offence can also be found guilty of the criminal offence of stalking – as if the offence attempted had been committed. 

As with all criminal offences, the prosecution must prove each element of the offence beyond reasonable doubt, in order for a person to be found guilty.

What is the definition of stalking?

Under section 8, the definition of stalking includes any of the following:

1. the following of a person;
2. the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity; or
3. contacting or otherwise approaching a person using the internet or any other technologically assisted means.

This means that stalking does not necessarily need to be physical, and includes online stalking whether via text messaging, mobile phone calls, email or via social media.

What is the definition of intimidation?

Intimidation is similarly defined in section 7 to include:

1. conduct amounting to harassment or molestation of a person (including cyberbullying);
2. approaches made to a person by any means (including by telephone, text messaging, e-mailing and other technologically assisted means) that causes the person to fear for their safety; or
3. conduct that causes a person to reasonably apprehend some injury to themselves or someone with whom they have a domestic relationship, violence to a person, damage to property or harm to an animal belonging to them or in their possession.

In addition, when determining whether a person’s actions amounts to intimidation, a Court is able to consider any pattern of domestic violence (or violence, generally) in the person’s behaviour. This might include any history of violent offending on the person’s criminal record (such as common assault) or any apprehended violence orders (AVO’s) in place.

What are the different types of stalking and intimidation?

As mentioned above, there are different forms of stalking and intimidation which might all mean someone is guilty of a criminal offence. The Crimes (Domestic and Personal Violence Act 2007 (NSW) takes a wide approach to defining stalking and intimidation offences, with a view that a person can stalk or intimidate another in a variety of ways.

In short, stalking and/or intimidating can either be physical in nature, or be carried out using some technological means. Physical stalking or intimidation may be carried out by constantly turning up to a person’s place of residence or employment or approaching them in the street after being asked not to.

On the other hand, online forms of stalking and intimidation do not require any physical presence. Behaviour such as repeatedly making phone calls, constant text messaging or emailing or using social media to message someone after being asked not to, could all be considered stalking or intimidation, depending on the circumstances.

Ultimately, whether conduct is stalking or intimidation will generally depend on whether a person intended to cause fear, or whether the person apprehended some form of injury or violence or damage to property, respectively.