What is Stalking or Intimidation?

Stalking or Intimidation is an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

The offence applies where a person stalks or intimidates another person with the intention of causing them to fear physical or mental harm.

Importantly, the prosecution does not need to prove that the alleged victim actually experienced fear. It may be enough to prove that the accused knew their conduct was likely to cause that fear.

Elements of the Offence

To prove stalking or intimidation, the prosecution must establish each required element beyond reasonable doubt.

1. The Accused Stalked or Intimidated Another Person

Stalking may include conduct such as:

• following another person;
• watching or approaching their home, workplace or other location;
• repeatedly contacting or monitoring them; or
• engaging in conduct that amounts to stalking under the legislation.

Intimidation may include:

• harassment;
• threatening behaviour;
• repeated unwanted contact;
• approaching another person by phone, text message, email or social media; or
• other conduct capable of causing fear for personal safety.

2. The Accused Intended to Cause Fear

The Prosecution must prove that the accused intended to cause the other person to fear physical or mental harm.

A person may be taken to have the required intention where they knew that their conduct was likely to cause fear.

3. Actual Fear Does Not Need to Be Proven

The Prosecution does not have to prove that the alleged victim actually feared physical or mental harm. The focus is on the accused person’s conduct and intention.

What Are the Penalties for Stalking or Intimidation?

An offence under section 13 can carry a maximum penalty of 5 years imprisonment and/or a fine.

Where the matter is dealt with in the Local Court of NSW, the maximum term of imprisonment available is generally lower because of the Local Court’s sentencing limits.

The sentence imposed will depend on factors including:

• the nature and duration of the alleged conduct;
• whether threats were made;
• whether the conduct was repeated;
• the relationship between the parties;
• whether the matter involved domestic violence;
• the accused person’s criminal history;
• whether the matter proceeds as a guilty plea or defended hearing; and
• the accused person’s personal circumstances.

Depending on the seriousness of the matter, sentencing options may include a Conditional Release Order Without Conviction, Fine, Community Correction Order, Intensive Correction Order or imprisonment.

Pleading Guilty

If you plead guilty, the matter will proceed to sentencing.

The Court will consider the seriousness of the conduct, your criminal history, personal circumstances, rehabilitation and any remorse shown. A guilty plea may also be taken into account when determining the appropriate sentence.

Your lawyer can prepare sentencing material and make submissions aimed at achieving the most favourable outcome available.

Pleading Not Guilty

If you plead not guilty, the prosecution must prove every element of the offence beyond reasonable doubt.

Your lawyer may challenge issues such as:

• whether the alleged conduct actually amounted to stalking or intimidation;
• whether you intended to cause fear;
• whether you knew the conduct was likely to cause fear;
• the reliability of witness evidence;
• the context of text messages, emails or social media communications;
• whether the alleged conduct was misunderstood; and
• inconsistencies in the prosecution case.

If the prosecution cannot prove the offence beyond reasonable doubt, you should be found not guilty.

Defending a Stalking or Intimidation Charge

Depending on the circumstances, possible defences or issues may include:

• lack of intention to cause fear;
• disputing that the conduct amounted to stalking or intimidation;
• mistaken identity;
• challenging the interpretation of communications;
• self-defence where legally available;
• duress;
• necessity; or
• challenging the reliability of the prosecution evidence.

Every case depends on its own facts, particularly the nature, context and frequency of the alleged conduct.

Apprehended Violence Orders

Stalking and Intimidation charges are often connected with an Apprehended Violence Order (AVO) or Apprehended Domestic Violence Order (ADVO).

An AVO may impose conditions restricting contact with the protected person, attending particular locations or engaging in certain conduct. Breaching an AVO is a separate criminal offence.

Which Court Will Hear the Matter?

Stalking and intimidation matters are generally dealt with in the Local Court of NSW, although more serious matters may proceed differently depending on the circumstances.

Your lawyer can advise you about the court process and what to expect at each stage.

How We Can Help

At Chidiac & Associates, we understand that stalking or intimidation allegations can have a serious impact on your personal and professional life.

We can assist by:

• reviewing the police brief and evidence;
• examining text messages, emails, social media and other communications;
• advising you about your plea and legal options;
• identifying possible defences;
• representing you in related AVO or ADVO proceedings;
• negotiating with prosecutors where appropriate;
• seeking withdrawal or reduction of charges where available;
• representing you at all court appearances; and
• preparing your matter for hearing, trial or sentencing.