The SBS Insight program featured a segment some time ago about the nature and prevalence of stalking in Australia, with alleged offenders, complainants and police officers relating their experiences of such conduct and the criminal justice system's treatment of it.
But those on the program struggled to define the term 'stalking', giving varying descriptions of what they consider the term to mean.
So what is the definition of stalking in the NSW criminal law? What types of conduct amount to stalking under the law? What is the offence of stalking in our state, what does the prosecution need to prove, what are the penalties and how seriously do courts consider domestic violence related offences?
Definition of stalking in the NSW criminal law
'Stalking' is defined by section 8 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act) as including:
- the following of a person about,
- 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, and
- contacting or otherwise approaching a person using the internet or any other technologically assisted means.
The section makes clear that 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.
Examples of situations found by the courts to amount to stalking include:
- Continuing to call or send text messages to the targeted person after he or she has made clear they do not want to receive such contact,
- Attending multiple places where the targeted person frequents, in circumstances where the defendant would not normally attend those places,
- Repeatedly posting on the targeted person's social media pages, after that person has made clear they do not want these publications,
- Continuing to send gifts to a person after he or she has made clear they do not wish to receive them, and
- Attending the targeted person's home or workplace and watching, or repeatedly driving past these premises, in circumstances where there is no reason to do this.
What is the offence of stalking?
Section 13 of the Act prescribes a maximum penalty of 5 years in prison and/or a fine of $5,500 – or 2 years in prison if the case remains in the Local Court rather than being referred to the District Court – for any person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm.
For the purposes of the 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,
- 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,
- the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm, and
- an attempt to commit the offence is enough to establish the offence.
- conduct (including cyberbullying) amounting to harassment or molestation of the person,
- an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or
- any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.
Again, the court can consider a course of conduct when determining whether a defendant has engaged in intimidatory conduct.
How seriously do the courts treat stalking offences?
The courts have gone to great lengths to emphasise the seriousness with which they treat domestic violence offences, including offences that include elements of stalking, intimidation or physical violence in the domestic context.
In Munda v Western Australia (2013), the High Court of Australia made clear that:
"the long-standing obligation of the state.. [is] to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence."
In the context of sentencing for the offences, the court remarked:
"A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law."
In The Queen v Kilic (2016), the High Court recognised that:
"[C]urrent sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations."
In that case, the court treated the fact the respondent's offence involved domestic violence as a distinguishing aggravating circumstance of significance and referred to: "... the abuse of a relationship of trust which such an offence necessarily entails and which ... must be deterred".
The denunciation of, and punishment for, "brutal" and "alcohol-fuelled" conduct in the context of a domestic relationship was considered to be particularly apt in the NSW Court of Criminal Appeal case of Ngatamariki v R , where the court stated:
"It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community."
The need for both general deterrence (deterring would-be offenders) and specific deterrence (deterring the particular offender) has been a theme in both judicial decisions and parliamentary inquiries.
The onus rests on the prosecution to prove stalking charges
It is important to bear in mind that the onus always rests on the prosecution to prove beyond reasonable doubt that the defendant engaged in conduct amounting to stalking.
This can be a difficult hurdle for them to overcome in circumstances where the defendant refutes allegations of engaging in specific conduct – such as attending or driving past the complainant's premises – or has a lawful reason for attending the locations or engaging in the alleged conduct.
Where there is such a dispute, it is the defence lawyer's job to push for the withdrawal of the charges so their client is not subjected to the costs, anxiety and stress associated with a defended hearing or, if the prosecution nevertheless insists on a hearing, raising doubt as to the elements of the offences during that hearing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.