s359E Criminal Code 1899 makes it an offence to unlawfully stalk a person.
What the prosecution must prove.
The prosecution must prove beyond reasonable doubt:
1. Conduct intentionally directed at the complainant.
2. The conduct was engaged in on any one occasion if the conduct is protracted or on more than one occasion.
3. The conduct consists of one or more of the following:
(a) following, loitering near, watching or approaching a person;
(b) contacting a person in any way,
(c) loitering near, watching, approaching or entering a place where a person lives, works or visits;
(d) leaving offensive material where it will be found by, given to or brought to the attention of, a person;
(e) giving offensive material to a person, directly or indirectly;
(f) an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;
(g) An act of violence, or a threat of violence, against, or against property of, anyone, including the defendant
(h) the conduct:
– Would cause the complainant to fear violence to their person or property or that of another. The fear must be reasonable in all the circumstances.
– Caused detriment to the complainant or another person. The detriment must be reasonable in all the circumstances.
What it means.
The law excludes a number of potential defence arguments by providing it is immaterial (read irrelevant) whether:
• the defendant intends that the complainant be aware that that conduct is directed at them.
• the defendant has a mistaken belief about the identity of the person at whom the conduct is initially directed.
• the conduct directed at the complainant consists of conduct carried out in relation to another person or the property of another person.
• the defendant intended to cause the apprehension or fear, or the detriment.
• the apprehension or fear, or the violence is actually caused.
Violence includes depriving someone of their liberty.
Detriment includes serious mental, psychological or emotional harm, being prevented or hindered from doing something or being forced to do something.
The prosecution must prove beyond reasonable doubt that the alleged fear or detriment is reasonable. That is a question for a Magistrate or jury. This requirement of proof provides some measure of protection. An overly sensitive person suffering a detriment in response to innocent behaviour is not reasonable and does not amount to the offence of Stalking unless the defendant is aware of a complainant’s particular sensitivity.
It is the conduct taken as a whole, not individual act, that must be regarded in deciding whether the fear or detriment is reasonable.
Reasonable conduct in a person’s lawful trade, business or occupation, to obtain information to which a person is entitled, for a genuine industrial dispute is not Stalking. A common example that arises is a person repeatedly contacting another to pursue recovery of a business debt.
The available defences.
Reasonable conduct in the course of business.
The usual penalties.
The maximum penalty for the criminal offence of Stalking is 5 years imprisonment.
The maximum penalty is increased to 7 years imprisonment if the offence involve the use or threat of actual violence, a person being armed or was committed in breach of a restraining order including a domestic violence order or peace and good behavior order.
The maximum penalty is a poor numerical indicator of sentences usually imposed. It plays a role in setting the seriousness of an offence. The maximum penalty is hardly ever imposed.
The penalty for a first offence of this nature can vary because the offence can apply to a very wide range of conduct. Penalties range from a fine to sentences of imprisonment.
The Court has a power to impose a restraining order in respect of an offence of Stalking. The Court can make that order even if a person is found not guilty or the prosecution withdraw the charge. The Court must be satisfied it is desirable to make an order. It is a criminal offence to breach a restraining order.
Factors that affect the appropriate penalty include the duration of the conduct, the persistence of the conduct, the nature of the conduct especially any actual or threatened violence, and the impact on the complainant.