What is stalking?

13 August 2023 in Criminal Law

Under section 13 of the Crimes (Domestic and Personal Violence) Act 2007, the offence of stalking or intimidation is when someone stalks or intimidates someone else with the intention of inciting fear of physical or mental harm. This offence also includes any attempted stalking.

In NSW, the prosecution must prove beyond a reasonable doubt two elements of the offence in order to obtain a conviction:

1. That the accused had the intention to instil fear of physical or mental harm; and
2. That their behaviour or attempted behaviour constitutes stalking.

Intention is present if the accused knows that their conduct is likely to cause fear. The prosecution does not need to prove that the other person actually feared harm.

Stalking is a serious offence and carries a maximum penalty of 5 years imprisonment and/or 50 penalty units.

What is stalking?

Section 8 of the Crimes (Domestic and Personal Violence) Act 2007 states that stalking is “the following of a person about or 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.”

It involves persistent behaviour(s) that aims to maintain contact with the other person or exert power and control over them.

Persistent behaviours that may constitute stalking or intimidation include:

• Following a person
• Contacting a person (by phone, email, text, social media etc) to instil fear
• Watching, approaching or frequenting a person’s home, work, business or any place that a person frequents for the purpose of social or leisure activity
• Harassment or molestation
• Behaviours that cause fear of violence to a person or property
• Behaviours that cause fear of injury to a person or a person with whom they are in a domestic relationship

Some acts could include repeatedly sending unwanted text messages, verbally threatening the person, turning up at the person’s gym, giving unwanted gifts or leaving threatening notes in a person’s mailbox. The definition in the legislation is broad and can include many acts.

Defences for Stalking

Some defences may include:

• Where there is a lack of evidence for all elements of the offence, such as a lack of intent to cause fear or harm;
• Where the accused had a legitimate reason for their behaviour (such as working in the same building as the other person);
• Necessity – a general criminal law defence that argues that the person broke the law to escape an immediate threat; or
• Duress – a general criminal law defence that argues that the crime committed by the defendant was only due to genuine threat or intimidation and was against the individual’s will.

Can I get a Section 10 if charged with stalking?

Yes, with the right legal representation, it is possible to get a section 10 if you are charged with stalking and the conduct is a relatively minor form and duration of stalking. Referring to section 10 of the Crimes (Sentencing Procedure) Act 1999, this is where a court finds you guilty of an offence but discharges the matter without recording a conviction, meaning you will not receive a criminal record.

How can BSM help?

The criminal team at Brander Smith McKnight is highly experienced with stalking offences and can help protect you from onerous charges.