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.
Police interviewWe 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 guiltyWhen 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.
Pleading guiltyIf 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.
LegislationSection 21A of the Crimes Act 1958 (Vic) is the relevant provision which deals with stalking.1
Elements of the offenceFor an accused person to be found guilty of stalking, the Prosecution must prove the following elements beyond a reasonable doubt:
- The accused intentionally engaged in a “course of conduct” that included conduct of the type described above; and
- 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
Different examples of StalkingKeeping 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
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.
- 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.
 R v Anders>  VSCA 7.
 Slaveski v State of Victoria and Others  VSC 441
 Above n.1
 Nadarajamoorthy v Moreton  VSC 283.
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
- 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?
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.
Sentencing in the higher courtsFrom 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%
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’ CourtsThe 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
 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).
 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).
 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).
 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).
Stalking case studies
- Stalking and Using a Carriage Service to Harass
- Assault and Threat Charges – CCO, Fine
- Good Behaviour Bond for Obscene Exposure
- Withdrawing Stalking Charges
- Assault – No Priors