Stalk / intimidate – s 13(1) Crimes (Domestic and Personal Violence) Act 2007

“stalking” includes the following–

1. the following of a person about,
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,
3. contacting or otherwise approaching a person using the internet or any other technologically assisted means.

For the purpose of determining whether a person’s conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.

• ie. The accused contacted, followed, watched, frequented the victims, house, work or place of leisure in an excessive manner.

What is intimidation?

“intimidation” of a person means:

1. conduct (including cyberbullying) amounting to harassment or molestation of the person, or

Note: An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email.

2. an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or
3. any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

For the purpose of determining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.

The maximum penalty for stalk/intimidate is 5 years or 50 penalty units, or both.

Please note that such a penalty is reserved for the most serious cases only. 

This option is recommended only where you accept that you:

• stalked or intimidated another person, or attempted to stalk or intimidate another person; and
• you knew that your conduct was likely to cause reasonable fear of physical or mental harm in the other person.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

• A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court exercises a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction.
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
  • This is the most common penalty for the offence of AOABH.
• Community Corrections Orders (“CCO”)
  • An example of a CCO is performing service within the community.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

To prove this offence, the Prosecution must establish beyond a reasonable doubt that:

• You stalked or intimidated another person, or attempted to stalk or intimidate another person; and
• you knew that your conduct was likely to cause reasonable fear of physical or mental harm in the other person.
  • NB: Not that the other person actually feared physical or mental harm. (see section 13(4) of the Act)

If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then the court must find you not guilty.

Defences:

• Intention and knowledge You did not intend to cause the victim to fear physical or mental harm because you did not know that the other person would feel reasonable fear.
• Identification: You were not responsible for the alleged behaviour.
• Self-defence, particularly where a person is defending their own property.
• Duress: circumstances or the threats of another compelled you to act in the manner you had. 
• Necessity: Your actions were necessary to prevent a greater harm from occurring