Stalking

– section 21A Crimes Act 1958 (Vic)

StalkingThe police will charge a person with stalking if he/she engage in any of the following prohibited behaviour:

  • Following the complainant
  • Contacting the complainant by telephone, email, Facebook messages or any other electronic communication
  • Publishing content relating to the complainant on the internet without their consent
  • Hacking into or tracing the complainant’s computer, email or other electronic communications without their consent
  • Making threats at the complainant
  • Directing abuse at the complainant
  • Acting in a way that will cause the complainant to fear for their safety or the safety of another person
  • Causing the complainant to induce self-harm
  • Keeping the complainant under surveillance
Examples of Stalking
  • Sending numerous unwelcomed text messages to an ex-partner
  • Calling an ex-partner numerous times even though they have told you to stop
  • Logging into a person’s Facebook without their consent
  • Following an ex-partner to work
  • Parking outside of someone’s house and watching their movements
  • Sending text messages to a co-worker telling them that you are going to send an email attaching an embarrassing photo of them
  • Cyberstalking
Questions in cases like this
  • Have you been deliberately following the complainant?
  • Did the complainant tell you not to call them?
  • Were you the person who breached the complainant’s privacy?
  • Do you suffer from a diagnosed mental health issue?
What are some of the possible defences to Stalking?

Section 21A(4A) of the Crimes Act 1958 (Vic) provides that there is a defence available to an accused charge with stalking if he/she can satisfy the Court on the balance of probabilities that there is a lawful explanation for their behaviour such as – they are performing their job, they are involved in an industrial dispute, they are engaging in lawful political protest.

Stalking comes in many forms and there is an excellent clinic at Forensicare that treats the more extreme forms of stalking. It is the sort of conduct where a psychological report is extremely important on a plea of guilty. The reason for this is that the behaviour needs to be placed in a context as to what is underlying it.

  • Mental Impairment
  • Honest and Reasonable Mistake of Belief
  • Impossibility
  • Lack of Intent
  • Factual and Identification Dispute
  • There is no course of conduct
“Can the prosecution prove a course of conduct?”
Maximum penalty and the court that deals with this charge

Stalking is a serious offence which attracts a maximum sentence of 10 years imprisonment. However, it is an offence that can be heard summarily in the Magistrates’ Court, which can only impose a maximum penalty of 2 years goal. Imprisonment is normally reserved for the worst example of stalking and Community Correction Orders with a condition that the accused engage in a behavioural change program or in counselling is a more common sentencing outcome.

Different examples of Stalking

Keeping the complainant under surveillance – section 21A(2f)
It is illegal for a person to keep another person under surveillance by recording or observing their movements.1

Examples of this offence include:

  • Taking photographs of the complaint without their knowledge
  • Recording the activities of a next-door neighbour

Following the complainant – section 21A(2)(a)
A person is prohibited from following another person with an intention to cause fear or mental harm.

The prosecution must satisfy the Court that the accused followed the complainant from one place to another.2 This does not require the accused to walk directly behind the complainant.3

However, this offence will not be made out if the accused simply watches the complainant walk by.4

Loitering – section 21A(2)(c)
A person may be charged with loitering if he/she enters or loiters outside or near the complainant’s home, business or any other place frequented by the complainant.

For example:

  • Continually standing outside of the complainant’s gym at a time when the complainant attends for no lawful reason;
  • Walking past the complainant’s home at a time when the complainant returns home from work;
  • Sitting in a parked car outside of the complainant’s home or work for no other lawful purpose.

The prosecution must prove that the accused loitered with an intention to cause physical or mental harm to the complainant, or of arousing apprehension or fear in the complainant’s mind for his/her safety.5

Call Doogue and George

Legislation

Section 21A of the Crimes Act 1958 (Vic) is the relevant provision which deals with stalking.6

Elements of the offence

For an accused person to be found guilty of stalking, the Prosecution must prove the following elements beyond a reasonable doubt:

  1. The accused intentionally engaged in a “course of conduct” that included conduct of the type described above; and
  2. The accused either:
    • Intended to cause physical or mental harm to the complainant. Or intended to arouse apprehension or fear in the complainant for his or her own safety or the safety of another person; or
    • Ought to have understood that their behaviour would likely cause the complainant to feel harm or an apprehension or fear, and it did have that result.
Possible sentences
  • Deferral of Sentencing
  • Diversion
  • Without Conviction Order
  • Adjournment of the Charges on Undertaking (Good Behaviour Bond)
  • Fine
  • Community Corrections Order
  • Term of Imprisonment

Higher Court

Sentencing in the higher courts

From 1 July 2011 to 30 June 2016, there were 21 cases (87 charges) of Stalking that were heard in the higher courts of Victoria. Majority of these cases resulted in imprisonment (52.4%). Other sentences imposed were:

  • Community Correction Order (CCO) – 14.3%
  • Fine – 14.3%
  • Adjourned Undertaking/Discharge/Dismissal – 9.5%
  • Wholly Suspended Sentence – 4.8%
  • Community-Based Order – 4.8%

Of the cases that led to imprisonment, the majority were sentenced to a term that was less than a year (27.3%). The highest term imposed was between 6 and 7 years but this was applied in only 9.1% of the cases.

Majority of the charges that led to CCO were sentenced to a term between 2 and 3 years (69.2%). The longest term imposed was between 3 and 4 years (15.4%).7

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option. Community-based orders were also abolished in Victoria in 16 January 2012, effective immediately for all offences committed before, on, or after this date.8

Sentencing in the Magistrates’ Courts

The Magistrates’ Courts, the number of cases of Stalking reached as high as 1,522 (1,937 charges) from 1 July 2013 to 30 June 2016. Most of these cases resulted in Community Correction Order (34.5%) followed by Imprisonment (28.7%). Other penalties include Fine (4.5%), Adjourned Undertaking/Discharge/Dismissal (13.3%), Wholly Suspended Sentence (7.0%), and Partially Suspended Sentence (2.0%).

Of the charges that led to Community Correction Order (CCO), majority were sentenced to a term between 12 and 18 months (46.0%, non-aggregate). The highest term imposed was 24+ months (11.4%, non-aggregate).

The longest prison term imposed was 36+ months but this was least imposed at only 1.2% of the cases that led to imprisonment. Majority were sentenced to a term that was less than 3 months (30.5%).9

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option. Community-based orders were also abolished in Victoria in 16 January 2012, effective immediately for all offences committed before, on, or after this date.10

Stalking case studies
Media articles related to the charge of Stalking:
Links to further information about the charge of Stalking:


[1] R v Anders> [2009] VSCA 7.
[2] Slaveski v State of Victoria and Others [2010] VSC 441
[3] Ibid.
[4] Above n.1
[5] Nadarajamoorthy v Moreton [2003] VSC 283.
[6] http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/ca195882/s21a.html
[7] Sentencing Advisory Council. “SACStat Higher Courts – Crimes Act 1958 (Vic): s 21A – stalking.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_6231_21A.html (accessed February 20, 2019).
[8] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed February 20, 2019).
[9] Sentencing Advisory Council. “SAC Statistics – Crimes Act 1958 (Vic): s 21A – stalking.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_21A.html (accessed February 20, 2019).
[10] Sentencing Advisory Council. “Suspended Sentence.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence (accessed February 20, 2019).