Is Stalking a Crime?

Stalking is a crime in every state and territory in Australia.

Stalking has to be more than one incident. Some states require two or more offences. If only one incident has occurred then the correct offence in Intimidation.

If you report your stalker to the police, the stalker could be arrested, charged and will have to appear to appear in court.

You can also take out an apprehended violence order. The condition not to stalk appears as number 1c on a New South Wales Apprehended Violence Order.

‘The defendant must not stalk the PINOP (person in need of protection)or any other person whom the PINOP has a domestic relationship)

 

It is important to have a broad knowledge of stalking legislation from most Australian states and territories due to the transient nature of some victims who are escaping their predator and because of advancements in electronic communications. Quite often nowadays we may find the victim in one state and the perpetrator in another, or even in another country.

 

The following is a summary of stalking legislation in Australia, current as of the 6 March, 2009. Current legislation from all states and territories in Australia can be found on the austlii website

http://www.austlii.edu.au/

 

NEW SOUTH WALES

Crimes (Domestic & Personal Violence) Act 2007, NSW

Stalking legislation in New South Wales was made in tandem with laws enacted in relation to domestic violence matters. The NSW government determined in 2007 that the provisions relating to domestic and personal violence ought to be contained in separate legislation.  The Crimes (Domestic and Personal Violence) Act 2007 NSW (‘the Act’) came into effect on the 10 March 2008, and deals with matters of domestic and personal violence only.

The provisions relating to stalking in the new Act are sections 8 and 13. Section 8 contains the definition of stalking, while section 13 contains the offence provision.

 

Section 8: Meaning of “Stalking”

(1)    In this Act, “stalking” includes 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.

(2)    For the purpose of determining whether a person’s conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.

The definition provided in Section 8 is an extremely wide definition of what can constitute stalking. It can encompass cyber behaviour, although the Commonwealth legislation code covers telephone and computers which would be used in preference to section 8 if the conduct alleged was restricted to cyber behaviour only.

Section 13: Stalking or intimidation with intent to cause fear of physical or mental harm

(1)    A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.

Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both.

(2)    For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.

 (3)    For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.

(4)    For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.

 

VICTORIA

Crimes Act 1958, section 21A

Stalking is defined as a person engaging in a course of conduct which causes apprehension or fear and includes any of the following:

·         following the victim

·         contacting the victim by any means

·         publishing on the internet or by email, or other electronic communication to any person a statement or other material  about the victim

·         tracing the victim through electronic communication

·         entering or loitering outside the victim’s residence, place of business or any other place frequented by the victim

·         interfering with the victim’s property

·         giving the victim offensive material or leaving it where it could be found by the victim

·         keeping the victim under surveillance.

 

Punishment:      up to 10 years imprisonment.

 

QUEENSLAND

Criminal Code Act 1899, section 359

Unlawful stalking is conduct intentionally directed at a person and engaged in on any one occasion if the conduct is protracted, or on more than one occasion.  Such conduct could consist of one or more of the following that would cause the stalked person apprehension or fear or that causes detriment:

 

·         following, loitering, watching or approaching the victim

·         contacting by any form of communication

·         leaving offensive material where it will be found by or given to or brought to the attention of the victim

·         an intimidating, harassing or threatening act.

 

Punishment:      maximum seven (7) years imprisonment.

 

SOUTH AUSTRALIA

Criminal Law Consolidation Act 1935, section 19AA

A stalker is defined as a person who intends to cause serious physical or mental harm to the other person or a third person or intends to cause serious apprehension or fear on at least two separate occasions. The behaviours include:

·         following the victim

·         loitering outside the victim’s place of residence or another place frequented by the victim

·         interfering with the victim’s property

·         giving or sending offensive material to the victim

·         publishing or transmitting offensive material which will be found by or brought to the attention of the victim (this includes electronic communication such as the internet)

·         all forms of communication

·         keeping the victim under surveillance.

 

Punishment:      three (3) years imprisonment for a basic offence

Five (5) years imprisonment for an aggravated offence

 

AUSTRALIAN CAPTIAL TERRITORY

Crimes Act 1900, section 35

A person must not stalk someone with intent to cause apprehension or fear of harm, to cause harm or to harass the person stalked. A person stalks someone if on at least two occasions the person does one or more of the following:

·         follows the victim

·         approaches the victim

·         loiters, or keeps the victim under surveillance

·         interferes with the victim’s property

·         gives or sends offensive material to the victim

·         contacts by any means of communication

·         sends electronic messages about the stalked person

·         engages in conduct amounting to intimidation, harassment or molestation of the stalked person.

Punishment:      up to five (5) years imprisonment.

 

WESTERN AUSTRALIA

Criminal Code Act Compilation Act 1913, section 338D

A person who pursues another person with intent to intimidate that person or a third person is guilty of stalking.

Behaviours that constitute pursue:

·         to repeatedly communicate

·         to repeatedly follow, watch or approach the victim.

Behaviours that constituteintimidate:

·         to cause physical or mental harm

·         to cause apprehension or fear

·         to prevent the person from doing an act that the person is lawfully entitled to do

·         to compel the person to do an act that the person is lawfully entitled to abstain from doing.

Punishment:      three (3 ) years imprisonment for a basic offence

Eight (8) years imprisonment for an aggravated offence

 

TASMANIA

Criminal Code Act 1924, section 192

A person who, with intent to cause another person physical or mental harm or to be apprehensive or fearful, pursues a course of conduct made up of one or more of the following:

·         following or surveillance of the victim

·         loitering outside the victim’s residence, workplace or other place the victim frequents

·         interfering with the victim’s property

·         sending offensive material to the victim

·         publishing/transmitting offensive material about the victim or using electronic communication to cause the victim fear or apprehension

·         contacting the victim by any means of communication.

 

NORTHERN TERRITORY

Domestic and Family Violence Act, Section 7

Stalking, a person, includes engaging in any of the following conduct on at least 2 separate occasions with the intention of causing harm to the person or causing the person to fear harm to the person:

(a)          intentionally following the person;

(b)          intentionally watching or loitering in the vicinity of, or intentionally approaching, the place where the person lives, works or regularly goes for a social or leisure activity.

NORTHERN TERRITORY: Criminal Code Act, Section 189

Unlawful stalking

                (1)          A person (the offender) stalks another person (the victim) if the offender engages in conduct that includes repeated instances of or a combination of any of the following:

(a)          following the victim or any other person;

(b)          telephoning, sending electronic messages to, or otherwise contacting, the victim or another person;

(c)           entering or loitering outside or near the victim's or another person's place of residence or of business or any other place frequented by the victim or the other person;

(d)          interfering with property in the victim's or another person's possession (whether or not the offender has an interest in the property);

(e)          giving offensive material to the victim or another person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person;

(f)           keeping the victim or another person under surveillance;

(g)          acting in any other way that could reasonably be expected to arouse apprehension or fear in the victim for his or her own safety or that of another person,

with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of another person and the course of conduct engaged in actually did have that result.

                (1A)       For the purposes of this section, an offender has the intention to cause physical or mental harm to the victim or to arouse apprehension or fear in the victim for his or her own safety or that of another person if the offender knows, or in the particular circumstances a reasonable person would have been aware, that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear.