The offence of Stalk/intimidate is found at section 13 of the Crimes (Domestic and Personal Violence) Act 1900.
This charge is popular with police because it is relatively easy to prove and captures a wide net of behaviour from threats made in domestic violence to altercations in the street. It is also frequently laid in relation to a person who makes repeated phone calls or sends text messages to a person of a threatening nature. It is often successfully defending where the
If you are charged with the offence of Stalk/intimidate, your options will normally be to plead guilty or not guilty.
Pleading not guilty
You will be found not guilty of the offence of Stalk/intimidate if the police cannot prove beyond reasonable doubt:
- If stalking is alleged, that you:
- Followed a person with the intention of causing the other person to fear physical or mental harm; or
- Watched or frequented the vicinity of, or approached the vicinity of a person’s residence, business, work or place the person frequents for the purposes of any social or leisure activity with intent to cause to cause physical or mental harm.
2. If intimidation is alleged, that you:
- Engaged in conduct amounting to harassment or molestation with the intention of causing the other person to fear physical or mental harm; or
- Made repeated telephone calls with the intention of causing the other person to fear physical or mental harm; or
- Any conduct that causes a reasonable apprehension of injury to a person or a person with whom he or she has a domestic relationship with the intention of causing the other person to fear physical or mental harm; or
- Any conduct that causes a reasonable apprehension of violence or damage to any person or property with intent to cause to cause physical or mental harm
The police are not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. However, the police are required to establish that you intended to cause fear of physical or mental harm. You will intend to cause fear of physical or mental harm if you know that the conduct is likely to cause fear in the other person. 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.
Domestic relationship includes is or has been married to the other person, or is or has been a de facto partner of that other person, or has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or is living or has lived in the same household as the other person, or is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person, or has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person, or is or has been a relative of the other person, or in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture.
If the police are able to prove the above elements beyond reasonable doubt, you will still be found not guilty if any of the following defences can be established:
Contact our offices in Sydney or Blacktown to organise a time for one of our criminal lawyers to advise you of your prospects of successfully defending the charge of Stalk/intimidate.
If you agree that you have committed the offence (and the police are able to prove so), it is best to plead guilty as you will normally receive a discount on sentence and it will demonstrate remorse and contrition. Alternatively, it may be the case that one of our experienced solicitors can negotiate with prosecutors for you to plead guilty to less serious facts or even a less serious charge.
Stalk/intimidate carries a maximum penalty of 2 years imprisonment in the Local Court and 5 years imprisonment in the District Court; however, these penalties are typically reserved for the worst offenders. Our solicitors have a proven track record of not only keeping our clients out of gaol but also, depending on the seriousness of the allegation, having the offence dealt with by way of section 10 of the Crimes (Sentencing Procedure) Act, meaning no conviction will be recorded, there is no other penalty and you will have no criminal record. To find out more about a section 10, click here.
Penalties that a court can impose in NSW are:
- Section 10 – No conviction recorded
- Section 9 – Good behaviour bond
- Community service order
- Section 12 – Suspended sentence
- Intensive correction order
- Home detention
- Full time imprisonment
Mr Correy represented a man charged with intimidation to cause fear of mental/physical harm. His wife gave evidence that the Accused man threatened her life by saying “If you disappeared off the face of the earth tomorrow, the kids would not have to see your boyfriend again”. She conceded under cross examination that the Accused man said “If you died of lung cancer, the kids won’t have to see your new boyfriend again”. The Magistrate found the client’s actual words provided a different context to the remarks and they were not threats to the wife’s life. The case was dismissed.