Have you been charged with stalking?
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What does it mean to be charged with stalking?
Stalking is a serious (indictable) offence in Victoria, governed under Section 21A of the Crimes Act 1958 (CA). It occurs when a person intentionally engages in a “course of conduct” aimed at causing physical, emotional, or mental harm to another person, or instilling apprehension of fear for their safety or the safety of others.
Stalking includes actions that the offender knew or should have known would likely result in such harm or fear.
Examples of Stalking
Stalking encompasses a wide range of behaviours, including:
- Following a person (s 21A(2)(a)): E.g., persistently following a former partner to instil fear.
- Contacting a victim via communication methods (s 21A(2)(b)): E.g., sending multiple unsolicited messages after being asked to stop.
- Publishing material online (s 21A(2)(c)): E.g., threatening to share offensive content about a coworker.
- Causing unauthorised computer functions: E.g., accessing another person’s social media without consent.
- Loitering (s 21A(2)(d)): E.g., sitting outside someone’s home or workplace with no lawful reason.
- Interfering with property: E.g., tampering with items belonging to the victim.
- Keeping the victim under surveillance (s 21A(2)(f)): E.g., monitoring and recording a person’s activities without their knowledge.
- Making threats or engaging in abusive acts: E.g., leaving offensive material in places where it will be found.
What does the prosecution have to prove?
To determine if you have been charged with stalking, the prosecution must prove the following elements beyond a reasonable doubt:
- You intentionally engaged in a “course of conduct” as defined under s 21A(2) of the Crimes Act.
- Your conduct caused physical, mental, or emotional harm to the victim, or instilled fear for their or another person’s safety.
- You knew, or should have known, that such conduct would likely result in harm or fear.
What are the penalties for stalking?
Stalking offences carry significant penalties, including:
- Imprisonment:
- Up to 10 years (Level 5 offence) if heard in higher courts.
- Up to 2 years if heard summarily in the Magistrates Court.
- Diversion Programs:
- Often applied for first-time offenders or those with mitigating circumstances.
- No disclosable outcome, keeping the criminal record clean.
- Community Correction Orders (CCOs):
- Frequently paired with behavioral change programs or counseling.
- Fines:
- May be imposed with or without a conviction.
- Youth Justice Centre Orders:
- For young offenders, ensuring rehabilitation.
Recent Stalking Case examples:
- Case 1: A young defendant trespassed on school property and left threatening letters. Following our defence strategy emphasising their young age, clean record, and mental health issues, the prosecution accepted a diversion program, resulting in the charge being discharged.
- Case 2: A defendant made repeated threatening phone calls to their former partner after a breakup. We highlighted mitigating factors, such as their mental health and early guilty plea, resulting in a fine without conviction.
- Case 3: A juvenile engaged in stalking of a sexual nature. Due to their young age and personal circumstances, we successfully argued for a Therapeutic Treatment Order (TTO), avoiding a criminal record.
What are some defences to consider?
Defences to stalking charges depend on the specific circumstances of the case. Possible defences include:
- Lack of Intent: Demonstrating the absence of an intention to cause harm or fear.
- No “Course of Conduct”: Establishing that actions were isolated or lacked malice.
- Lawful Purpose: Showing actions were part of legitimate professional, political, or industrial activities (s 21A(4A)).
- Mistaken Identity: Providing evidence that another individual was responsible for the conduct.
- Mental Impairment: Arguing the defendant was unable to understand the nature or unlawfulness of their actions (s 20 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997).
- Honest and Reasonable Mistake: Demonstrating actions were carried out without knowledge of harm caused.
Police Interviews:
If accused of stalking, you may be invited to a formal police interview. Police may already possess evidence against you but may seek further admissions. Before attending:
- Seek Legal Advice: Understand your rights and obligations.
- Plan Your Response: Decide whether to make a statement or answer questions.
- Avoid Self-Incrimination: Be cautious about providing information that may weaken your defence.
Our lawyers can provide tailored advice and accompany you during police interviews to protect your rights.
Considerations When Sentencing
Courts consider various factors when determining penalties, such as:
- Nature and gravity of the offence.
- The offender’s intent and level of planning.
- Duration of the stalking behaviour.
- Impact on the victim, including physical and psychological harm.
- Personal circumstances, criminal history, and cooperation with authorities.
Defendants with severe, premeditated, or biased motives face harsher penalties.
-
Aggravated Assault
-
Wilful Damage
-
Common Assault
-
Public Display of a Nazi Symbol or the Nazi Salute
-
Harassing a Witness
-
Recklessly Causing Serious Injury In Circumstances Of Gross Violence
-
Affray Charges In Victoria
-
Intentionally Causing Serious Injury in Circumstances of Gross Violence
-
Intentionally causing Serious Injury
-
Recklessly Causing Serious Injury
-
Intentionally Causing Injury
-
Administering Certain Substances
-
Threats to Kill and Assault Offences
-
Stalking
-
Negligently Causing Serious Injury
-
Extortion With Threat to Kill
-
Extortion, With Threats to Destroy and/or Endanger Property
-
Threatening to Prevent Arrest
-
Using a Firearm in the Commission of an Offence
-
Being Armed with Criminal Intent
-
Kidnapping
-
Robbery
-
Armed Robbery
-
Aggravated Burglary
-
Home Invasion
-
Aggravated Home Invasion
-
Arson
-
Criminal Damage
-
False Imprisonment
-
Public Nuisance
-
Riot
-
Rout Offence
-
Unlawful Assembly
-
Intentionally Causing a Very Serious Disease
-
Carjacking
-
Aggravated Carjacking
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What happens next?
If you have been charged with stalking or are under investigation, contact MK Law for expert legal advice 24/7 at 1800 130 120 or marcus.mklawfirm.com.au. Our experienced team specialises in:
- Investigating and challenging prosecution evidence.
- Negotiating charge reductions or withdrawals.
- Preparing strong defences to achieve favourable outcomes.
- Advising on plea agreements to minimise penalties.
Engage us early to ensure your rights are protected and to navigate the complex legal system effectively.
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