A charge of stalking is a very complex and serious charge under Queensland law, stalking charges are being laid by police at increasing levels. Queensland was the first state in Australia to have stalking legislation and it has one of the strictest laws about stalking in Australia. It is an extremely complex area of the law. Research released by the Queensland Sentencing Advisory Council reveals the number of stalking cases has risen by almost 50 per cent since 2005. We have been helping clients charged with stalking since 2010.
What is the offence of stalking?
The offence of stalking or more correctly “unlawful stalking” is widely, and complexly, defined in the Queensland Criminal Code section 359A
In general, the offence of stalking means conduct towards another person like unwanted or threatening
- phone calls
- text messages
- voice messages
- notes
- messages or posts online
- gifts
- driving past the other persons house or stopping nearby
It also covers threats or actual violence towards another person. The conduct only needs to happen once but in general involves would involve a number of acts of stalking.
What does the prosecutor have to prove for a stalking charge?
To make out a charge of stalking, the prosecution must prove:
- The defendant has engaged in conduct that was intentionally directed at the complainant. (The word complainant, at law, means the person who is making the complaint; that is, the person who alleges they have been stalked by the defendant.)
It does not matter whether the defendant intends for the complainant to be aware the conduct is directed at the complainant or if the defendant has a mistaken belief about the identity of the person at whom the conduct is directed.
- The defendant’s conduct is engaged in on any one occasion, if the conduct is protracted, or on more than one occasion.
The conduct throughout the occasion on which the conduct is protracted, or the conduct on each of a number of occasions, can consist of different acts.
- The conduct consists of one or more acts of the following, or similar, type:
- following, loitering near, watching or approaching a person;
- contacting a person in any way, including for example, by telephone, mail, fax, e-mail or through the use of any technology;
- loitering near, watching, approaching or entering a place where a person lives, works or visits;
- leaving offensive material where it will be found by, given to or brought to the attention of, a person;
- giving offensive material to a person, directly or indirectly;
- an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;
- an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant.
And
- The conduct:
- would cause the complainant apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the complainant or another person; or
- causes detriment, reasonably arising in all the circumstances, to the complainant or another person.
It does not matter whether the defendant intended to cause the apprehension or fear, or the detriment and it does not matter whether the apprehension or fear, or the violence, is actually caused to make out the offnce of stalking.
Circumstances of aggravation
If any of the following elements are present then this is known as an aggravating circumstance which will result in an increase in the penalty and the matter having to be dealt with in the District Court.
- the defendant uses or threatens to use, violence against anyone or anyone’s property; or
- possesses a weapon; or
- contravenes or threatens to contravene an injunction, or order imposed or made by a court.
Does the other person have to be afraid?
No, it does not matter if the complainant felt fear or felt intimidated. It also does not matter if the defendant had no intention to cause the complainant any fear or apprehension.
Possible defences
Many different types of defences might exist. A defence of mistake might not exist as the law does not allow a person to claim the were mistaken as to who they were alleged to be directing their conduct against. In addition a defence of misidentification might be available. If you think you have a defence to a charge of stalking then contact us to discuss that.
Conduct that is not unlawful stalking
Not all acts will be classed as stalking in Queensland. The legislation says the following is not stalking;
- Reasonable behaviour in order for the person to continue conducting their lawful trade, occupation or business;
- Anything said or done during a genuine industrial dispute;
- Reasonable behaviour and conduct for a person with legitimate interests to obtain or give information;
- Anything said or done as part of a genuine public or political dispute which is in the public interest; and
- Legally authorised conduct, such as under an Act of legislation.
Examples of stalking
The Queensland Court of Appeal has stated “There is no well-defined and constraining range for stalking offences, obviously because of the particularly wide variety of these cases which regrettably emerges.”
Cases show some past scenarios as:
- Abuse and threats directed at a neighbour
- Barrages of text messages and loitering around an ex lover’s place of work
- Threatening emails to an ex-spouse’s family lawyer
- Verbal threats from an employer against an ex employee, who believed the employee had stolen money from him
- An adult talking to a child near the child’s school on multiple occasions and following him
- Constantly leaving gifts at a friends house after they asks that person to stop
- Driving past another persons house constantly
- Following a government employee
Punishment for stalking
What are the consequences of stalking? for a charge of stalking with no circumstance of aggravation, the maximum punishment is 5 years imprisonment, and the matter can be dealt with in the Magistrates Court.
For a charge of stalking where violence is threatened or used, the defendant possessed a weapon at the time of offending, or the defendant contravenes or threatens to contravene a court order (including DVO), the maximum punishment is 7 years, and the matter must be dealt with in the District Court.
Approximately 70% of stalking matters are resolved in the Magistrates Court and the rest in the District Court.
The usual punishment for stalking, especially if it is charged with a circumstance of aggravation, is actual imprisonment. Legal advice and representation are essential to navigate a charge of this kind. About half the stalking charges that proceed to sentence result in a punishment including imprisonment. Where imprisonment is not imposed a sentence of probation often is. Where imprisonment is part of the sentence then even if it is wholly suspended a criminal conviction must be recorded.
Restraining order
The court can, if it finds it ‘desirable’, order a restraining order to prevent the defendant going near the complainant or places the complainant lives or works.
Can you negotiate with the prosecutor about a stalking charge?
Negotiating or case conferencing with the Prosecutor often takes place. The negotiations might be in regards to the alleged facts or whether the charge should be withdrawn. The court can issue a restraining order even if a charge is withdrawn and as such the prosecutor might, if the facts and circumstances are appropriate, withdraw the charge if the defendant agrees to a restraining order.
Conclusion
As has been seen, a stalking offence can arise in a variety of circumstances, and the punishment can be quite severe. If you are charged with such an offence, speak with one of our experienced lawyers to give you the best defence possible.
How do I get more information or engage Clarity Law to act for me?
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