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In New South Wales, it is a criminal offence to stalk or intimidate a person, whether that stalking is physical in nature, or via some remote activity such as social media, emails, phone calls or text messaging.
Stalking offences can cause serious mental harm to a victim, often particularly so where the victim and offender are in, or have been in, a domestic relationship. A criminal conviction for stalking offences in NSW is a serious matter, carrying with it a potential term of 5 years imprisonment (although most matters will not warrant this maximum penalty).
Note that as our criminal lawyers are based in Sydney, this article focuses on the criminal law in NSW. In Australia, criminal law differs across States and so if you are outside NSW, it is worth speaking to a lawyer in your State to ensure you get legal help relevant to your matter.
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:
- 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;
- 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
- 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:
- the following of a person;
- 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
- 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:
- conduct amounting to harassment or molestation of a person (including cyberbullying);
- 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
- 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.
What must the prosecution prove?
In order to be found guilty of an offence under section 13, the prosecution in any stalking or intimidation matter must prove a number of matters beyond reasonable doubt. These matters are as follows:
Either that you
- engaged in conduct that was intimidation (as that term is defined in section 7);
- with the intention that the person would fear some form of physical harm or mental harm;
- engaged in conduct that was stalking (as that term is defined in section 8);
- with the intention that the person would fear some form of physical harm or mental harm.
What is the penalty for stalking and intimidation?
While the maximum penalty if a person receives a criminal conviction for stalking and/or intimidation is 5 years imprisonment and/or a fine of $5,500, it is open to the Court to impose a range of penalties if a person is found guilty. Unless the actions are particularly serious or where a person has a significant history of offending, a Court will generally seek to impose a punishment that suits the circumstances of the offending in order to avoid imposing a term of imprisonment.
Generally, a Court will be open to avoiding a prison sentence, and will instead be likely to impose any one or a number of the following forms of punishment:
- Section 10 or section 10A
- Home detention
- suspended sentence
- Conditional Release Order (CRO)
- Good Behaviour Bond
- Intensive Corrections Order (ICO)
- Community Corrections Order (CCO)
- Community Service Order (CSO)
In NSW, your matter is likely to be heard in the Local Court unless there are grounds to have the matter decided in the District Court or the Supreme Court. The Local Court will likely be amenable to submissions on which might be the appropriate punishment if a person is found guilty of an offence of stalking and/or intimidation. In these circumstances it is essential to obtain sound legal advice from expert criminal defence lawyers about the range of penalties available to a Court and which might be most applicable to your case.
The above is general legal information and should not be considered legal advice. You should speak with one of our migration lawyers for legal advice tailored to your specific legal matter. The courts and tribunals deal with matters on a case by case basis. It should also be noted that there may be delays due to COVID-19. Our lawyers are based in Sydney, we cannot assist with legal advice in a range of jurisdictions whether in Melbourne, Brisbane, Adelaide or Perth.
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Frequently Asked Questions.
Stalking is the following, watching or attendance at a person’s place of residence or employment, or otherwise contacting a person via technological means, in a way that intends to cause a person to fear physical harm or mental harm.
Intimidation includes the harassment or molestation of a person, approaching or contacting a person (including online or via phone) causing them to fear for their safety, or conduct that causes someone to apprehend some injury or violence to themselves, property or to a loved one.
The maximum penalty is 5 years’ imprisonment or 50 penalty units ($5500), or both. A Court will generally seek to impose one or a number of order’s on a guilty person if there is any way to avoid a term of imprisonment.
In NSW, stalking and intimidation matters are generally heard in the Local Court. In some circumstances the District Court or Supreme Court may hear the matter where it is not being heard summarily.
There are limited defences to an offence under section 13 in NSW. These include that you did not do any of the acts constituting the alleged criminal offence, that these actions are not within the definition of stalking and/or intimidation, or that you had no intention to cause the victim to fear physical harm or mental harm.
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