Stalking or Intimidation With Intent to Cause Fear of Physical or Mental Harm: NSW Offence Guide

Introduction

Understanding the laws surrounding stalking or intimidation in New South Wales is crucial for both victims and those accused of such offences. These laws, outlined in the Crimes (Domestic and Personal Violence) Act 2007 (NSW), are designed to protect individuals from harassment and fear, carrying significant penalties, including up to five years imprisonment.

This guide provides essential information and practical guidance on stalking and intimidation laws in NSW. It covers legal definitions, prosecution requirements, potential defences, and penalties, offering clarity and support for those navigating these complex legal issues.

Understanding Stalking & Intimidation in NSW

Legal Definition of Stalking & Intimidation

Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), stalking and intimidation each comprise three core elements: the type of conduct, the pattern of behaviour, and the required mental state.

1. Conduct
   • Stalking may involve:
     • Following a person in public or private spaces
     • Monitoring their activities or whereabouts
     • Contacting them via phone calls, texts, emails or social media
   • Intimidation may involve:
     • Harassing or molesting behaviour
     • Threatening gestures or comments
     • Actions that create a reasonable apprehension of violence or property damage
2. Pattern of Behaviour
   • The offending conduct must occur on more than one occasion—whether repeatedly or intermittently.
   • This “course of conduct” demonstrates persistence, and a single isolated incident will not generally suffice
3. Mental Element (Intention)
   • The accused must have intended to cause fear of physical or mental harm.
   • It is sufficient that the accused knew their conduct was likely to produce that fear or apprehension.

Key features that support these definitions include:

• The use of technologically assisted means—such as cyberbullying or location-sharing apps—to carry out stalking or intimidation.
• Consideration of any prior or concurrent violence as part of an overall pattern.
• The fact that an actual experience of fear by the victim is not required, only that a reasonable person in the victim’s position would likely have felt fear.

Examples of Intimidating & Stalking Behaviour

Stalking or intimidation with intent to cause fear can manifest in a variety of ways, for instance:

• Stalking behaviours
  • Following someone or watching their movements
  • Repeatedly contacting someone via phone, email, or social media after being asked to stop
  • Showing up at a person’s home, workplace, or frequent social spots without consent
• Intimidation behaviours
  • Making physical threats or gestures that cause fear
  • Sending threatening messages or emails
  • Damaging property or threatening to do so

For a conviction, the prosecution must prove that the accused intended to cause fear and that their actions meet the legal definitions of stalking or intimidation. Importantly, the victim does not need to have actually experienced fear—only that the accused knew their conduct was likely to cause fear.

Proving Stalking or Intimidation Offence in NSW

Key Elements Proved by the Prosecution

To secure a conviction for stalking or intimidation in NSW, the prosecution must establish specific elements beyond a reasonable doubt. Understanding these elements is crucial for both the accused and the alleged victim to grasp the legal process.

The prosecution must establish the following key elements:

• Occurrence of the Conduct: The alleged stalking or intimidating behaviour must have occurred as described.
• Legal Definition: The conduct must meet the legal definitions of stalking or intimidation (set out above) under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
• Intent to Cause Fear: The accused must have intended to cause the other person to fear physical or mental harm.

These elements ensure that the prosecution presents a comprehensive case, covering both the action and the intent behind it.

Intent to Cause Fear of Physical & Mental Harm

A critical aspect of the offence is the intent to cause fear. The prosecution must prove that the accused knew their conduct was likely to cause fear, even if the victim did not actually feel fear. This intent can be inferred from the circumstances:

• Repeated unwanted contact
• Threatening behaviour

For example, if someone sends threatening messages or follows another person persistently, it demonstrates an intent to cause fear. The fear can be of harm to the victim or someone with whom they have a domestic relationship, such as a family member or partner.

This section highlights the importance of intent in proving the offence, emphasising that the accused’s knowledge of the likely impact of their actions is sufficient for a conviction.

Legal Defences for Stalking & Intimidation

General Defence Strategies

When charged with stalking or intimidation in NSW, the accused can employ several legal defence strategies designed to challenge the prosecution’s case and potentially lead to a reduction or dismissal of charges. Common defence strategies include:

• Denying the Act: The accused may argue that the alleged stalking or intimidating behaviour did not occur, presenting evidence that contradicts the prosecution’s claims or demonstrating their absence at the relevant time.
• Contesting the Legal Definition: The defence may claim that the accused’s actions do not meet the legal definition of stalking or intimidation—for example, by arguing that the behaviour was neither intended to cause fear nor covered by the specific definitions in the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
• Challenging the Intent Element: A key requirement for stalking or intimidation is the intent to cause fear of physical or mental harm. The defence may contend that the accused lacked this intent or was unaware that their conduct was likely to cause fear.

Challenges in Proving Defence Claims

Establishing a defence in stalking or intimidation cases can be difficult, given the nature of the offence and the legal requirements. Some of the key challenges include:

• Evidentiary Challenges: The prosecution must prove beyond a reasonable doubt both that the accused’s conduct amounted to stalking or intimidation and that they had the requisite intent. Meanwhile, the defence often struggles to present evidence that contradicts the prosecution’s case, particularly when alleged offences occur in private or involve only the accused and the victim.
• Proving Lack of Intent: Since the prosecution only needs to show that the accused knew their conduct was likely to cause fear—not that the victim actually feared harm—it can be hard for the defence to prove a lack of intent.
• Pattern of Behaviour: Courts may take into account any previous similar behaviour or pattern of violence when deciding if the accused’s conduct amounted to stalking or intimidation. Consequently, arguing that the accused’s actions were isolated or unintentional becomes more challenging.
• Subjective Fear Element: The prosecution does not need to demonstrate that the victim actually feared harm, merely that the conduct was likely to cause fear. This requirement makes it difficult for the defence to argue that the victim’s fear was unreasonable or that the accused’s actions were not intimidating.

Understanding these challenges is crucial for developing an effective defence strategy. A skilled criminal lawyer can help navigate these complexities and present the strongest possible case.

Penalties & Sentencing for Stalking & Intimidation in NSW

Maximum & Typical Penalties

The maximum penalty for stalking or intimidation in NSW is five years’ imprisonment and/or a fine of 50 penalty units (currently $5,500). Specifically, if the matter is heard in the District Court, the full maximum penalty applies; however, when the case is finalised in the Local Court, it is capped at two years’ imprisonment and/or a $5,500 fine.

The penalties imposed can vary widely depending on the severity of the offence. Common outcomes include:

• Section 10 Dismissal: No conviction is recorded, and no other penalty is imposed.
• Good Behaviour Bond: The offender must comply with specific conditions for a set period.
• Fines: Imposed according to the offender’s financial circumstances.
• Community Service Order: Requires the offender to perform unpaid community work.
• Imprisonment: Reserved for the most serious cases, which may be served in the community under an Intensive Correction Order (ICO).

Court Considerations in Sentencing

When determining the appropriate sentence, the court considers several factors, including:

• Seriousness of the Conduct: Whether the stalking or intimidation involved direct threats, physical contact, or repeated behaviour.
• Criminal History: Prior convictions—especially for similar offences—can lead to harsher penalties.
• Mitigating Circumstances: Demonstrations of remorse, a guilty plea, or completion of rehabilitation programs may reduce the sentence.
• Impact on the Victim: The emotional or psychological harm caused to the victim is also taken into account.

For example, a first-time offender who shows genuine remorse and has completed counselling may receive a more lenient sentence, such as a good behaviour bond. Conversely, an offender with a history of similar offences is more likely to face imprisonment.

Understanding these factors is crucial for anyone facing stalking or intimidation charges, and consulting with an experienced criminal lawyer can help navigate the legal process to achieve the best possible outcome.

Conclusion

Understanding the laws surrounding stalking or intimidation in New South Wales is crucial for both victims and those accused of such offences. This guide has covered essential aspects, including legal definitions, prosecution requirements, potential defences, and penalties. It is designed to provide clarity and support for those navigating these complex legal issues.

If you or someone you know is facing stalking or intimidation charges, it is essential to seek legal advice from experienced criminal lawyers. Contact Daoud Legal, a trusted criminal law firm in Sydney, today to discuss your case and explore your options. Their expertise can help you navigate the legal process and achieve the best possible outcome.

Frequently Asked Questions