Stalking

In Victoria, the offence of Stalking is in section 21A of the Crimes Act 1958 Vic, which is engaging in a course of conduct intending to cause another mental harm.

Are you accused of Stalking? If yes, you will have important legal questions which you will want to ask one of our experienced criminal defence lawyers.
 
Making false reports to police
We are criminal lawyers only defend people accused by Police with wrong-doing and have helped many people secure an acquittal for Stalking.

Police interview
We can advise you about what should be said during a Police interview. You may want to know – should I make a statement to Police? Should I attend a Police interview? Do I need to give my mobile phone? Will the Police leave me alone if I explain my side of the story? Will I be remanded if I give a ‘no comment’ interview?

If the Police want to speak with you about an allegation of Kidnapping, speak with one of our experienced lawyers first. Anything you tell the Police without advice can make running a defence in Court more difficult later on.

You can also have one of our lawyers attend the Police station with you for the interview to make sure you do not say anything you shouldn’t. It is also comforting to have someone on your side.

Pleading not guilty
When dealing with an allegation of Stalking, it is important to engage a lawyer to commence work straight away because there may be evidence which needs to be preserved.

You want a lawyer who is going to be proactive and:

  • Obtain your instructions,
  • Devise a defence strategy,
  • Request disclosure material from Police,
  • Speak to defence witnesses,
  • Obtain statements from defence witnesses.
We believe in preparing matters thoroughly for a contested hearing as this leads to great outcomes.

Pleading guilty
If you are pleading guilty to Stalking, you need to get legal advice about the potential consequences. We can provide you with advice and represent you in a plea in mitigation. We can advise you how to prepare your plea to get the possible outcome in Court. We will help you to arrange reports and documents that will help avoid a prison sentence.

Sentencing
Sentencing in the higher courts of VictoriaSentencing Statistics Pie Chart for Stalking in the Higher CourtsSentencing in the Magistrates’ Courts of VictoriaSentencing Statistics Pie Chart for Stalking in the Magistrates' Courts
Which court will the case be heard in?
This is an offence that can be heard summarily in the Magistrates’ Court.

Legislation
Section 21A of the Crimes Act 1958 (Vic) is the relevant provision which deals with stalking.1

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.
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
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.2

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.3 This does not require the accused to walk directly behind the complainant.4

However, this offence will not be made out if the accused simply watches the complainant walk by.5

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.6

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?”

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?
Maximum penalty for section 21A Crimes Act 1958
Stalking (s21A Crimes Act 1958) 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.

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

[1] http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/ca195882/s21a.html
[2] R v Anders> [2009] VSCA 7.
[3] Slaveski v State of Victoria and Others [2010] VSC 441
[4] Ibid.
[5] Above n.1
[6] Nadarajamoorthy v Moreton [2003] VSC 283.