02.07.14
What is stalk or intimidate?
What is stalk or intimidate?
What can I do to stop someone from stalking or harassing me?
Do you suspect someone is stalking you? Are you receiving unwanted phone calls and messages? Are you being repeatedly bothered by someone on Facebook? Do you feel like you have been followed? These are just some of the circumstances in which you may be able to get some protection from the courts.
What is harassment? How can I stop it?
Harassment is often associated with domestic violence and relationship breakdowns. There are many different reasons why people engage in harassing behaviour.
Harassment includes conduct aimed to intimidate. This behaviour causes the person being harassed to fear for their safety or the safety of family members. Intimidation also includes fearing violence or damage to property to any person. Stalking is also a form of harassing behaviour which occurs where a person is watching, following, attending places which you attend regularly such as your work, home or school on a number of occasions.
What is stalk or intimidate?
Stalking and intimidation is an offence contrary to the Crimes (Domestic and Personal Violence) Act 1997 (NSW) section 13:
A person who stalks or intimidates or attempts to stalk or intimidate another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.
Under this offence a person intends to cause fear of physical or mental harm if he or she knows that their behaviour is likely to cause the other person to be fearful.
It is not necessary to prove that the person being stalked was actually fearful, it is enough to prove this offence if the person who is accused of harassing behaviour knows their behaviour is likely to make the other person fearful.
What are the penalties for stalk and intimidate?
This is an offence which carries a maximum penalty of 5 years imprisonment and/or a fine of $5,500 (or 50 penalty units). This offence is most often dealt with in the Local Court where the maximum term of imprisonment is 2 years.
What you need to do?
When determining whether certain conduct amounts to stalking or intimidation the court will consider whether there is a pattern of behaviour. It is important to keep a record of any incidents which cause you concern. This may be necessary to give to the police, or if you are making an application for a private AVO, this information will help your case.
You should keep a record of the date, time, description of what happened, where it happened and anyone who may be a witness.
What legal protections are available?
The police are responsible for investigating crime. You can report incidents that you are concerned about. You can also raise the need for an Apprehended Violence Order (AVO). An AVO is not a criminal charge.
The police have discretion to charge a person you consider is harassing you. If they do not lay any charges or initiate AVO proceedings you can do this privately.
How do I get an AVO?
It is not necessary for a person to be charged in order for an AVO to be made. However, when the AVO application is accompanied by a criminal charge and the person is found guilty, grounds for an AVO will have been established.
Where you are represented by police you will not need a lawyer. However, if you are making the application privately, getting a lawyer is a very good idea. It is better to do this at the early stages. Preparing the evidence that must be filed and served is an expert task. If the evidence is not strong or it appears that the application is vexatious, or in other words a vengeful or spiteful application, or an application which has not chance of success, a costs order can be made against the losing party to cover any legal costs incurred.
The correct application can then be made to the local court listing the defendant (the person responsible for the unwanted conduct) and the protected person (the person who the unwanted conduct is directed against), there can be an number of protected persons.
The defendant may accept the AVO with or without consenting to the reasons for making the application. An order can be made to enforce the AVO if the defendant does not attend court.
The defendant may also defend the application. If this occurs, a timetable will be made which sets out the dates the protected person and the defendant must serve the evidence they rely upon for their case. The case will then will be listed for a hearing. At the hearing the Magistrate will make a determination as to whether there are sufficient grounds to warrant an AVO.
Interim orders are usually set by a registrar or Magistrate at court before the case is finalised to provide protection during the proceedings. Once an order is finalised, final orders will be made which will be enforceable for a set period of time and the interim orders will cease.
What orders will be made under the AVO following stalk or intimidate charges?
There are 3 conditions which must be included, these are called mandatory conditions. The defendant must not:
- Assault, molest, harass, threaten or interfere with the protected person;
- Intimidate the protected person; and
- Stalk the protected person.
The conditions extend to anyone in a domestic relationship with the protected person including children.
The court also has the power to make additional orders which include refraining from approaching the protected person and places the protected person attends regularly, refraining from damaging property, and refraining from taking alcohol and drugs. Other orders can also be made depending on the circumstances of the case.
What happens if the order is breached?
It is a criminal offence to breach an AVO. This offence carries a maximum penalty of 2 years imprisonment and/or a fine of $5,500.00. The defendant who breached the order may be charged by police and will be required to attend court.
For more information or case studies on some of the cases we have defended, go to:
https://lylawyers.com.au/stalk-or-intimidate/
https://lylawyers.com.au/criminal-law/criminal-offence/contravene-apprehended-violence-order/
