In New South Wales, the offence of stalking or intimidation causing fear of physical or mental harm is defined in Section 13 of the Crimes (Domestic and Personal Violence) Act. It may be associated with a domestic violence offence or common assault, but it requires no acts of physical violence to take place to prove its occurrence.
The proliferation of mobile phones and other forms of technology has changed the understanding of crimes like stalking or intimidation. For example, defendants can now be charged for threats or other intimidating messages sent via mobile phones and other technology.
What is stalking?
Stalking is defined in Section 8 of Crimes (Domestic and Personal Violence) Act 2007 (NSW) as:
- The following of a person about.
- 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.
- Contacting or otherwise approaching a person using the internet or any other technologically assisted means.
What is intimidation?
Intimidation is defined in Section 7 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) as:
- Conduct (including cyberbullying) amounting to harassment or molestation of the person.
- An approach made to the person by any means (including by telephone, telephone text messaging, emailing and other technologically assisted means) that causes the person to fear for his or her safety.
- Any conduct that causes a reasonable apprehension of injury to a person or to a person with whom they have a domestic relationship, or of violence or damage to any person or property, or of harm to an animal that belongs or belonged to a person or a person with whom they have a domestic relationship.
- Conduct amounting to the coercion or deception of, or a threat to, a child to enter into a forced marriage within the meaning of the Crimes Act 1900 or Commonwealth Criminal Code.
The Supreme Court case Mahmoud v Sutherland established that for conduct to rise to the level of statutory intimidation, it must exceed “rude, offensive and boorish behaviour.”
What actions might be considered stalking or intimidation?
The following actions may constitute the offence of stalking:
- Repeatedly contacting a person via telephone calls, emails or messages when they have asked you not to.
- Appearing at a person’s home or workplace without their consent or permission.
- Following a person as they go about their day.
The following actions may constitute the offence of intimidation:
- Physically threatening a person or their family.
- Pointing an object that could be construed as a weapon at a person.
- Threatening to cause damage to someone’s property, such as their car.
What must the prosecution prove?
For the prosecution to a person guilty of stalking or intimidation causing fear of physical or mental harm, as defined in Section 13 of the Crimes (Domestic and Personal Violence) Act NSW, they must prove the following beyond reasonable doubt:
- The alleged behaviour occurred.
- The person’s conduct amounts to the legal definition of stalking or intimidation.
- The person’s behaviour was done with the intent to cause the other person to fear physical or mental harm.
This section establishes the following provisions:
- Causing a person to fear physical or mental harm can include fearing physical or mental harm to a person with whom they have a domestic relationship.
- A person intends to cause fear of physical or mental harm if they know that the conduct is likely to cause fear in the other person.
- A person who attempts to commit this offence is guilty of the offence and is punishable as if the offence had been committed.
Most significantly, Section 13 establishes that the prosecution does not need to prove that the alleged victim actually feared physical or mental harm. Proving that this fear was intended is enough to secure a conviction.
Penalties for stalking or intimidation
In NSW, the maximum penalty for stalking or intimidation causing fear of physical or mental harm is imprisonment for 5 years or 50 penalty units (currently $5,500), or both.
The maximum penalty of 5 years imprisonment is only enforceable in a District Court. If sentencing occurs in a local court, the maximum prison sentence is 2 years.
Other penalties that a NSW court may impose for this offence include:
- Section 10 – No conviction recorded
- Section 9 – Good behaviour bond
- Community service order
- Section 12 – Suspended sentence
- Intensive correction order
- Home detention
This offence is sometimes dealt with pursuant to section 10 of the Crimes (Sentence Procedure) Act, meaning no conviction will be recorded, there is no other penalty and you will have no criminal record. To find out more about Section 10 orders, click here.
Defences for stalking or intimidation
A defence may argue that there is not enough evidence to suggest that the behaviour occurred, that it should be considered statutory stalking or intimidation, or that it was done with the intent to cause the other person to fear physical or mental harm.
Alternatively, general legal defences such as necessity or duress may be used. The defence of necessity can be used where circumstances induced the defendant to commit the offence to avoid even more dire consequences. It can be argued that a defendant was acting under duress if real or implied threats were made that caused them to commit the offence.
If you are facing stalking or intimidation charges, contact us today for your free initial consultation in our Sydney CBD, Parramatta, Liverpool, Gosford or Wollongong offices. We specialise in criminal law and have a high rate of success in all types of criminal charges. You can read case studies showcasing our experience with regard to stalking or intimidation charges below.
