Under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), it is an offence to stalk or intimidate another person with the intention of causing the other person to fear physical or mental harm.

Charges are likely to involve actions intended to control, manipulate or intimidate a person.

There are other types of offences in this category of charge including stalk, harass, or intimidate a police or other law enforcement officer (Division 8A, Crimes Act 1900) and stalk, harass or intimidate a school student or school teacher, or other school staff member (Division 8B, Crimes Act 1900).

There are two categories of Stalk or Intimidate offences under the Crimes (Domestic and Personal Violence) legislation.

1 – Stalking or Intimidation (Domestic Violence) requires the accused to have tried to cause fear in someone they are in a domestic relationship with, either past or present.  It can be a partner, child, girlfriend, or a friend the accused lives with. This offence is far more common that the personal violence related offence.

2 – The offence of Stalking or Intimidation (Personal Violence) relates to pressuring, harassing or intimidating a stranger, or someone not in any way related to the accused, with the intent to cause them fear.

Generally, stalking and intimidation generally involves the physical presence of the accused. If the accused has been following or watching their victim, with or without the victim’s knowledge, or against their will, is guilty of stalking.

If the accused visits the victim’s home or workplace for no legitimate purpose and without consent they may be guilty of stalking. If the accused attends a location they know the victim frequents with intent to cause harm or fear of harm to the victim, that may constitute an offence.

Intimidation is generally either physical and/or verbal harassment or molestation of another or being in contact with a person in such a way as to make them fear for their wellbeing. Intimidation can be causing fear in the victim for the safety of a member of their family. Contacting the family members of the victim can also amount to harassment if the purpose is to intimidate the victim or cause the victim to fear for their safety or the safety of the family member.

The maximum penalty for committing a Stalk Or Intimidate offence is imprisonment for five years or a fine of $5500, or both. However, if dealt with in the Local Court, the maximum penalty is two years’ imprisonment.

As with any offence, even after a finding of guilt the court can still decide not to record a conviction.

Penalties other than full time custodial sentences are also common, including home detention, intensive corrections orders, community service, suspended sentences, good behavior bonds under section 9, and fines.

Section 10 dismissals or conditional release orders are possible for the most minor types of this offence, usually for an accused with no prior criminal record.

You will be found not guilty if your defence is accepted in court. The best defence is to prove that the accused did not know that their conduct was likely to cause fear of physical or mental harm to the other person.

Available defences are:

Self defence

This can be raised if:

1 – you were acting to protect yourself, somebody else, or your property.

2 – you honestly believed you were acting reasonably in taking the action you did. Even if you were mistaken in your belief, you can still rely on this defence as long as you honestly and reasonably believed that you had to act in self defence.

There are some qualifiers. Your actions have to have been proportionate to the threat. If you were drunk or using drugs and your level of intoxication caused you to misinterpret the threat, you may not be able to rely on this defence.

Duress

This defence can be raised where somebody forced you to commit the crime against your will. You have to show evidence:

1 – that an actual threat was made and that the threat was ongoing. Text messages, phone conversations, or testimony in court can all be used. It is irrelevant whether the threat could be carried out. You just have to have genuinely believed in the threat.

2- that the threat was so menacing (death/serious injury) that it would have deprived any person of your age and gender of their free will and left no option but for you engage in the unlawful conduct.

Necessity

This defence can be difficult to prove and is rarely used. The prosecution must prove beyond reasonable doubt (more than 50% likelihood) that there was no immediate danger to you.

No threat has to be present but there must have been some reason that left you no option but to assault somebody. For example, you were being restrained by somebody who was unaware there was fire in the building you were trying to exit and you had to assault them to break free and make your way to safety.

You will need evidence to show:

1 – you acted to avoid death or serious injury or other serious, irreversible consequences to you or somebody else.

2 – you honestly and reasonably believed the threat or situation existed.

3 – you acted in a manner that was proportionate and reasonable in the circumstances.