Stalking or Intimidation

What must the prosecution prove?

To be found guilty of stalking or intimidation pursuant to section 13 of the Crimes (Domestic and Personal Violence) Act, the Prosecution must prove beyond reasonable doubt that:

1. The defendant stalked or intimidated; and 

2. The defendant intended to cause fear of physical or mental harm. 

 

In determining whether conduct amounts to stalking, Section 8 of the Crimes (Domestic and Personal Violence) Act defines stalking as including:

a) the following of a person about,

b) the watching or frequenting of the vincinity 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,

c) contacting or otherwise approaching a person using the internet or any other technologically assisted means. 

 

The court can also have regard to any pattern of violence in a person's behaviour.

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In determining whether conduct amounts to intimidation, Section 9 of the Crimes (Domestic and Personal Violence) Act defines intimidation as meaning:

a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or

b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing, and other technologically assisted means) that causes that person to feat for his or her safety or

c) conduct that causes a reasonable apprehension of 

i) injury to the person or to another person with whom the person has a domestic relationshiop

ii) violence to any person , or

iii) damage to any property, or

iv) harm to any animal that belongs or belonged to, or is or was in the possession of, the person or another person with whom the person has a domestic relationship. 

There is also so provisions in respect of coercion of children and adults into entering into forced marriages. 

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Under Section 13(4) the prosecution is not required to prove that the person stalked or intimidated actually feared physical or mental harm.

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However, the prosecution must prove beyond reasonable doubt that the defendant intended to cause the other person fear of physical or mental harm.

 

People will often say and do things that are unpleasant and cause people to be scared of fearful. However, this is an unintended consequence of what was said. They didn't intend for them to fear physical or mental harm. In such a case the court would find them not guilty. 

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Stalk and intimidation charges are serious matters. In the right circumstances and witih a well prepared case you can defend such charges. You should seek proper advice before doing so. 

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If Found Guilty What Other Sentencing Options can the Court impose?

The Court has the full array of sentencing options available to it including:​

1. To impose a fine;

2. To sentence a person to an Intensive Corrections Order or Community Corrections Order;

3. To order a person to comply with a Conditional Release Order to be of good behaviour;

4. To convict a person without imposing any other penalty;

5. To dismiss the charge without conviction pursuant to Section 10. This results in no disqualification because the charge is dismissed.

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The likely sentence for this charge is hard to predict because it will depend on the allegations and the alleged degree of stalking and intimidation. We have had great success in obtaining no conviction/section 10 in stalking and intimidation cases. 

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What about the AVO?

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If there is an AVO associated to your charge, if you plead guilty the court will make the AVO ordinarily automatically on you entering a plea of guilty. 

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John Vizzone, barrister, is an experienced Criminal Lawyer  who has represented hundreds of clients in such matters in courts across Sydney. If you have a matter, contact him now for a free quote for him to represent you. Alternatively call him on 0416167690.

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