Stalking and Intimidating NSW
Stalking and intimidating, causing fear of physical or mental harm charge is popular with police. It captures a wide range of behaviour. In recent times we have seen increased incidences of spouses making up allegations of intimidation with the aim of having the police take out apprehended violence orders. This can lead to immeasurable stress and Apprehended Violence Orders that prevent fathers, mothers and children from living together.
Fortunately, our criminal lawyers often can put the police to task in proving the offence of stalk/intimidate. Especially in circumstances where the only witness is the accuser or where there is a suspicion of collusion amongst prosecution witnesses. Our clients are frequently found not guilty of stalk/intimidate.
If you intend to plead guilty, our criminal lawyers have a proven track record of not only keeping our clients out of jail but also in some cases having no conviction recorded.
What is Stalking and Intimidating?
Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 makes stalking or intimidation with intent to cause fear of physical or mental harm an offence in NSW. The maximum penalty is 5 years imprisonment, a fine of $11,100 or both.
Causing fear of physical or mental harm is not limited to the victim’s fear of harm to themselves. If the victim fears harm from a person, they are in a domestic relationship with because of the offender’s behaviour then a criminal offence has been committed.
What is Intimidation?
The meaning of intimidation is addressed in section 7 of the Crimes (Domestic and Personal Violence) Act 2007.
Intimidation meaning
- Engaging in conduct amounting to harassment or molestation with the intention of causing the other person to fear physical or mental harm.
- This includes cyberbullying such as the publication or transmission of offensive material over social media or via email.
- Making repeated telephone calls or sending emails and/or text messages 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, 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, animal, or property with intent to cause physical or mental harm
- Conduct amounting to coercion or deception of, or threat to, a child or adult to enter into a forced marriage.
The court will consider any pattern of violence (especially domestic violence) in determining whether a person’s actions amount to intimidation.
What is Stalking?
The meaning of stalking is addressed in section 8 of the Crimes (Domestic and Personal Violence) Act 2007.
Stalking Meaning
- 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
- Contacting a person using the internet or phone.
The court will consider any pattern of violence (especially domestic violence) in determining whether a person’s actions amount to stalking.
How do I beat a stalk and intimidate charge?
To be found guilty of stalking or intimidating, the prosecution must prove beyond reasonable doubt that
- You engaged in conduct amounting to stalking or intimidating another person (as per the descriptions above) or attempted to stalk or intimidate them.
- You knew that your conduct was likely to cause fear of physical or mental harm in the other person.
The police are not required to prove that the person alleged to have been stalked or intimidated and feared physical or mental harm. The police are, however, 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.
Pleading guilty to a charge of stalking and intimidating
If you agree that you have committed the offence and the police are able to prove so, it is best to plead guilty. You will normally receive a discount on your 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 two years imprisonment in the Local Court and five years imprisonment in the District Court. These penalties are typically reserved for the worst offenders. Our solicitors have a proven track record of keeping our clients out of jail. Also, depending on the seriousness of the allegation having the offence dealt with by way of Section 10 no conviction of the Crimes (Sentencing Procedure) Act. This means no conviction will be recorded. There is no other penalty, and you will have no criminal record.
Penalties for Stalking and Intimidating
If the matter is heard in the district court, the maximum penalty for stalking and intimidating is 5 years imprisonment, a fine of $11,100 (50 penalty units) or both.
If the matter is heard in the local court, the maximum penalty is 2 years, a fine of $11,100 or both.
There are alternate penalties available to the court, however, which are considered more favourable than imprisonment. These include;
We recommend working with an experienced criminal defence lawyer to help you avoid a prison sentence for stalking and intimidating.
Sentencing Considerations
When deciding what penalty to impose the court will assess several factors regarding the conduct of the accused, circumstances around the crime and personal circumstances of the accused.
Objective Considerations
The judge or magistrate will consider the objective seriousness of the crime compared with other stalking or intimidating offences. This includes the following.
- The method used to stalk and intimidate: Was this face to face, via phone, email or through another person? Generally, the more direct the method used, the more serious the offence is considered.
- Degree of stalking and intimidating:
- Directness threats: Was the threat conditional vs. direct? The more direct, the more serious it is considered.
- What threats were made: To cause physical harm, to break something of theirs, or to murder?
- Duration of the offence: Was the stalking or intimidating part of an ongoing campaign of harassment or a one-off offence? Repeated behaviour and stalking and intimidating over an extended period is more serious the longer the duration.
- Where the offence took place: Was is at home vs. in public, vs. in the workplace for example.
- Planning involved: Was the stalking or intimidating spontaneous vs. panned. The less spontaneous the offence, the more serious the offence is considered to be.
Subjective Considerations
The courts will also assess the personal circumstances of the offender such as the following.
- Prior criminal record: A more lenient sentence may be given to someone with no prior criminal record.
- Remorse: Has the accused accepted guilt and shown true remorse for their actions (eg. Via apology to the court).
- Character: Has the accused demonstrated that they are of good character. Having good character references prepared for court is a good way to do this.
- Metal wellbeing: The mental health of the accused must be considered. This includes at the time of the offence and whether it could have contributed to it. The accused may even be diverted away from the courts with a section 14 mental health application.
Do I need references to beat stalking and intimidating charges?
We believe that good character references are an extremely important part of a plea of guilty in court. They can greatly improve your chances of receiving a non-custodial sentence and even a section 10 no conviction.
Find out more about how to write a good reference.
Why choose Australian Criminal Law Group?
Our criminal lawyers are experts at obtaining the best outcome possible for Stalk/intimidate offences. Our defence lawyers are experienced at beating charges as well as getting more lenient sentences for clients that chose to plead guilty. This includes getting section 10s for stalking and intimidating charges.
To discuss your Stalk/intimidate charge, call the Australian Criminal Law Group at our Sydney, Parramatta, and Blacktown offices or make a website inquiry today.
Case study – Not guilty finding for intimidation
Mr Correy represented a man charged with intimidation to cause fear of mental/physical harm. His wife gave evidence that our client 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 threatening his wife’s life. The case was dismissed with the magistrate finding our client not guilty.
Case study – Common Assault charge dismissed
Australian Criminal Law Group represented a client charged with common assault, assault occasioning actual bodily harm, and intimidation. The allegation was that he hit his wife with a telephone and told her that he would kill her. As is not unusual in cases of this nature, the wife did not attend court. Our solicitor successfully argued that the adjournment application of the prosecution should be refused. The court could have no confidence that the wife would turn up to court at any time in the future. The magistrate agreed and dismissed the charge against our client.
Case study – Section 10 for threatening behaviour
Australian Criminal Law Group represented a man charged with threatening his wife in the immediate aftermath of their separation. The man admitted to the police that he had made the threat. Our solicitor successfully argued that the threat was out of character. Our client had lived an otherwise law-abiding life where he contributed to society. It was argued the threat occurred in the context of an extremely acrimonious separation that placed our client under great stress. The Magistrate accepted that our client should get a second chance and dismissed the offence under section 10, meaning our client had no criminal record.
Source: Crimes (Domestic and Personal Violence) Act 2007 No 80, Current version for 1 January 2022 to date (accessed 4 May 2022 at 19:22), https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-2007-080
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This information is intended as a general guide to law only. It should not be relied on as legal advice, and it is recommended that you speak with a qualified lawyer about your situation.
Australian Criminal Law Group and its suppliers make every reasonable effort to ensure the accuracy and validity of the information provided on its web pages. At the time of updating, this information was correct, however, given the laws in NSW and Australia are continually changing, Australian Criminal Law Group makes no warranties or representations as to its accuracy.