Criminal Lawyers SydneyStalk or Intimidate Offences

There are several offences of Stalking or Intimidation, also commonly referred to as Stalk or Intimidate, including Stalk, Harass, or Intimidate a Police or other Law Enforcement Officer (Division 8A, Crimes Act 1900), and Stalk, Harass or Intimidate a school student or school teacher or other school staff member (Division 8B, Crimes Act 1900).

However, by far the most common Stalking or Intimidation offences that come before the Courts are those under the Crimes (Domestic and Personal Violence) Act, 2007 (NSW).

In contradistinction to Assault related charges, Stalk or Intimidate offences, particularly in the domestic arena are likely to be related to actions which are intended to control, manipulate, or intimidate a person. The Stalk or Intimidate offences under the Crimes (Domestic and Personal Violence) legislation can come under two categories. One is general, while the other is more specific. The offence of Stalking or Intimidation – Personal Violence related is an offence of following, pressuring, harassing or intimidating a stranger or someone not in any way related to the accused with the intent to cause them fear. The offence of Stalking or Intimidation – Domestic Violence related, is where intimidation or other tactics are used to cause fear in someone whom the accused is in some form of domestic relationship with, or used to be. This is most often a husband or wife or partner, mother, father, sister, brother, child or other relative, but can be a friend with whom the accused lives.

The domestic violence related form of Stalk or Intimidate is very much more common than the personal violence related offence. Let’s examine both of these Stalk or Intimidate offences in more depth.

The general offence of stalking and/or intimidation falls within section 13 of the Crimes (Domestic and Personal Violence) Act, 2007. It is when a someone follows or intimidates another in order to cause their victim to feel either psychological or tangible fright. If the accused is guilty of this, then they are guilty of a criminal offence. Integral to the charge is whether the accused is guilty of the unlawful following or pressuring or both. We will define both.

Stalking often involves the physical presence of the accused. The accused is guilty of stalking if they have following or watching their victim, with or without the victim’s knowledge, or against their will. Stalking also includes being present at the victim’s home or where they work without their consent for no legitimate purpose. Stalking could also be when the accused approaches a place they know the victim to attend regularly with the intent to cause harm or fear of harm to the victim.

Intimidation is either harassment or molestation of another. Harassment can either by physical or verbal. Intimidation is also defined as being in contact with a person in such a way as to make them fear for their wellbeing. This could be harassing phone calls, e-mails, or letters. Intimidation can induce fear in the victim for their safety or the safety of a member of their family. Contacting the family members of the victim can also amount to harassment if the purpose is to intimidate the victim or cause the victim to fear for their safety or the safety of the family member.

To be convicted of stalking, the accused must have met the definitions of stalking, and done so with the intent to cause the victim either mental of physical fear. Evidence in this instance may include evidence of the accused repeatedly being present at the victims, or the victims family, home or workplace.

To be convicted of intimidation, the accused must have met the definitions of intimidation, and done so with the intent to cause the victim harm, either mental or physical. However, the fear must be “reasonable”. Intent will be inferred if the accused knows that the conduct is likely to cause fear in the victim. Evidence of actual fear on the part of the victim is not required to be proven by the Prosecution.

Are there differences between general stalking or intimidation, and stalking or intimidation specifically in relation to domestic violence?

Whereas a general charge of the offence in question is placed against the accused if they have stalked or intimidated any other person with the purpose of causing physical or mental harm, it is considered to be linked to domestic violence if the victim is known personally to the accused, and more specifically, it is required that the accused and the victim be in some type of domestic relationsip.

The relationships between the accused and the victim can be clarified and defined in many ways. The victim may be married or have been married to the accused, have lived or is living with the accused, or have or have had an intimate relationship with the accused (whether this is sexual in nature is not important). A domestic relationship can also be when the victim is living with the accused in a block or facility or is a family member of the accused.

To be accused of a domestic violence charge in relation to the charges in question, the accused must not only meet the domestic relationship definition but have intended to cause physical and mental harm knowing that their actions will scare or frighten the victim. This constitutes a charge.

If the accused meets these definitions in regards to a person they have or have in the past known intimately or been friendly with, and is being charged with stalking or intimidation, it will be the domestic violence related form of the offence.

There are a number of defences the accused can put forward in court to combat allegations that they stalked or intimidated the victim. These are the same in both personal and domestic violence related cases.

Self-defence is an eligible defence. The accused must raise the real possibility that their actions were taken in order to defend themselves or another person from harm, or to prevent the deprivation of their liberty or the liberty of another person. Self-defence can also be available if the accused was attempting to protect their property. The accused’s conduct must have been a reasonable response to the situation, or self-defence will not be made out.

The accused may also plead duress to the court. Duress is where a serious threat has been made to the accused or to their family, and they were acting in response to this. An actual threat must have been made (by someone else) involving death or injury to the accused or to a family member of the accused. It must also be seen as continuing. The accused must have acted in response to this threat for duress to be available. This type of defence does not arise often.

Another possible defence is that of necessity. This is similar to duress but more urgent. If the accused feels that they acted in response to an urgent situation in which they felt that they may have been killed or could receive harmful injury, this defence may stand up in court. The accused must also have acted in proportion to the threat. This is, again, a difficult defence to prove.

Offences under section 13 of the Crimes (Personal and Domestic Violence) legislation can lead to imprisonment for a maximum of 5 years. This outcome would only be for the most serious type of offence of this type, and for a repeat offender.

Penalties other than full time custodial sentences are also common, inlcuding home detention, intensive corrections orders, community service, suspended sentences, good behavior bonds under section 9, and fines.

Section 10 dismissals or Section 10 Bonds are possible for the most minor types of this offence, usually for an accused with no prior criminal record. If you have been charged with a stalk or intimidate offence, call Criminal Lawyers Sydney and Suburbs on (02) 9533 2269 without delay