Stalking Offences and Penalties in New South Wales (NSW)

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The legislation defines the crime of stalking as the act of following an individual about. It also refers to closely monitoring a person's movement by constantly watching and showing up in the areas they frequent. These areas could be their workplace, residence, or places they regularly visit to engage in social activities

According to the Australian Bureau of Statistics (ABS), about 1.6 million women and 587,000 men have been victims of the crime of stalking at least once since they reached 15. This offence enshrined in Section 8 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is punishable by up to five years in prison, depending on the circumstances of the case.

A person can also commit the offence of stalking through the use of the internet or any technology. In most cases, to determine if the action of a person amounts to stalking, the Court will consider any pattern of violence on the part of the accused, especially domestic violence.

If you are convicted of a stalking offence, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check.

The Elements of Stalking in New South Wales (NSW)

Before a NSW Court can find a person guilty of the offence of stalking, the prosecution must prove some elements beyond a reasonable doubt. These elements are that:

#1. The Actions of the Accused Constitutes Stalking

In NSW, there is a broad definition as regards behaviours that amount to stalking. Some of these actions include:

• Monitoring the movement of an individual by watching them or frequenting the places they usually go to engage in social activities or for leisure. Some examples of this include watching a person's house or constantly going to a person's favourite cafe or gym.
• Molestation and harassment of an individual. For instance, verbally threatening a person or sending unsolicited presents.
• Using social media, telephone calls or any technological means to pass unwanted messages to a person, consequently causing them to fear for their safety, for example, sending unsolicited Facebook messages repeatedly or constantly phoning a person while they are at work.
• Actions that make a person fear for the safety of their person or possession.

#2. The Accused Had the Intention of Inducing the Fear of Physical or Mental Harm

To be guilty of the crime of stalking, the accused must have intended to induce the fear of bodily or mental harm in the victim. However, it is inconsequential whether or not the victim actually became scared of any psychological or physical danger.

Another element that may indicate the accused's guilt is if the accused had a domestic relationship with the victim and a violent behaviour pattern, especially domestic violence. This domestic relationship could be that the accused and the victim:

• Are or were married.
• Have or had an intimate relationship, whether sexual or not.
• Are residing or have once lived in the same household or residential facility.
• Are relatives.

Penalties for Stalking in New South Wales (NSW)

Under Section 13 of the NSW Crimes (Domestic and Personal Violence) Act 2007 (NSW), the crime of stalking attracts a maximum of 5 years imprisonment or a fine of $5,500. The Act also authorises the Courts to give a sentence of both imprisonment and fine if the circumstances require.

However, this punishment is usually reserved for more serious offenders, like repeat offenders. It is also only applicable in the District Court. However, the Court that usually deals with cases of stalking is in the Local Court. And according to Section 267 of the Criminal Procedure Act 1986 (NSW), the maximum sentence that the Local Court may impose for the crime of stalking is two years of imprisonment and/or a fine of 50 penalty units which is about $5,500.

The Court equally has the right to issue other penalties depending on the circumstances surrounding the case and the strength of the defence.

The Court may decide to enforce lesser punishments. These punishments could be in the form of home detention, community service, or conditional release orders. In some situations, the Court may even dismiss the case after setting out certain conditions.

Furthermore, it is common for the Court to issue an Apprehended Violence Orders (AVO). These AVOs ensure that the offender obeys strict laws, which may refrain them from contacting the victim or being within a stipulated distance of the victim.

The purpose of these AVOs is to ensure the safety of the victim. If an offender breaks the Apprehended Violence Order, the Court may summon them and give them stricter penalties.

Defences to the Charge of Stalking

A person charged with the crime of stalking can raise any of the following defences to avoid a guilty verdict.

#1. Duress

Using this defence, the accused claims that they were threatened or intimidated into committing the offence of stalking. The threat could be one of bodily injury or death, giving the indicted no choice.

For the Court to accept this defence, certain factors must be present. The first element is that there must be an actual threat. Therefore, the accused must present evidence of the threats made and how the threatener made the threat. Such a threat may have been explicit or implied.

Secondly, the defendant must prove that the seriousness of the threat led to their actions. This means that the threat was capable of stripping the accused of their free will. Finally, the accused must also show that the threat induced fear in them and had no means of avoiding the danger.

If the defendant could have evaded the threat but didn't take the necessary action, the defendant may be unable to claim duress.

#2. Necessity

This defence is similar to the defence of duress. The difference between both is that the defence of necessity does not involve receiving threats from another person. Instead, it refers to the presence of certain overbearing factors that can cause a person to break the law. An example of this is when an ambulance driver violates traffic laws to prevent a patient from dying.

This defence is particularly difficult to prove in the law court. However, a defendant may successfully use this defence if they can prove its elements.

To raise this defence successfully, the accused must prove that they committed the crime of stalking to stop an unpleasant event from happening to the victim or other person. This event should be one that could have led to the death or injury of either the defendant or the victim. Simply put, the circumstances must be one of "imminent peril" to avoid an "irreparable evil."

Also, for the defence of necessity to stand, the accused will have to prove that they sincerely believed that they had to carry out the crime of stalking to prevent something terrible from happening to them or the accuser.

Another element that the defendant will have to prove is that their action was an adequate response to the situation. This means that the accused should be capable of proving that their response to the event was not an overreaction.

#3. Self Defence and Defence of Another

Like the previous defences, raising this defence requires the accused to prove certain things. First, the defendant must show that they committed the crime of stalking to protect themselves, their property, or another person from an aggressor.

For instance, the accused may have stalked the victim because the latter has a history of trespassing. In that case, the accused committed the offence to protect their property. Another example is stalking an individual who has a record of hurting other people.

Secondly, the defendant should prove that they believed their actions to be reasonable under the circumstances.

After the defendant has proven this, the Court will try to determine if it is true or not by considering the situation from the accused's perspective. There are cases where the accused mistakenly believed that they had to carry out the crime of stalking for self-defence.

In such cases, the Courts may allow the defence and dismiss the charges. This is as long as the accused genuinely believed that there was a threat to the safety of their wellbeing, property, or others. They must also believe that their actions were an adequate response to the threat.

However, this defence is not applicable where the accused was apprehensive due to the influence of drugs.

The Onus of Proving Stalking Charges

The word "onus" is a legal term that refers to responsibility. This term points to the person that has to prove the guilt or innocence of an accused person.

In most criminal cases, including those of stalking, the onus is on the prosecutor. Therefore, the prosecutor has to prove beyond reasonable doubt that the actions of the defendant amount to stalking.

Bottom Line

The offence of stalking is defined by Section 8 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and its penalties outlined by Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

NSW Courts do not take cases of stalking lightly and neither should any person accused of it. Apart from the apparent penalties outlined in the law, a guilty verdict remains on the offender's criminal record. And this can and, most likely, will have a negative impact on most aspects of their lives, especially their chances of employment.

Will a Stalking Offence show up on a Nationally Coordinated Criminal History Check certificate?

If an individual is convicted for the offence of Stalking, the offence will show up as a disclosable court outcome (DCO) on the results of their Nationally Coordinated Criminal History Check.

Individuals can obtain a Nationally Coordinated Criminal History Check online via the Australian National Character Check - ANCC® website.

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