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The Offence of Stalking in Victoria, What the prosecution must prove.

Updated: Apr 26

Charged with a stalking offence?


The offence of Stalking is an indictable offence, and frequently heard in the Magistrates' Court, and prosecuted in Victoria under s.21A of the Crimes Act 1958 (Vic).


What is Stalking?


What the prosecution must prove - an expansive definition under the Act


At law, to Stalk another person involves the alleged offender engaging in a course of conduct, that features any of the following behavior:


A 'course of conduct'

  • following the victim or any other person;

  • contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication or by any other means whatsoever;

  • publishing on the Internet or by an e-mail or other electronic communication to any person a statement or other material-

  • (a) relating to the victim or any other person; or

  • (b) purporting to relate to, or to originate from, the victim or any other person;

  • causing an unauthorized computer function in a computer owned or used by the victim or any other person

  • tracing the victim's or any other person's use of the Internet or of e-mail or other electronic communications;

  • entering or loitering outside or near the victim's or any other person's place of residence or of business or any other place frequented by the victim or the other person;

  • interfering with property in the victim's or any other person's possession (whether or not the offender has an interest in the property)

  • making threats to the victim;

  • using abusive or offensive acts in the presence of the victim

  • performing abusive or offensive acts in the presence of the victim;

  • directing abusive or offensive acts towards the victim;

  • giving offensive material to the victim or any other person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person;

  • keeping the victim or any other person under surveillance


Conduct causes harm


In addition, behavior not otherwise described in the above terms, is Stalking the alleged offender is in any other way that could reasonably be expected —

  • (a) to cause physical or mental harm to the victim, including self-harm; or

  • (b) to arouse apprehension or fear in the victim for his or her own safety or that of any other person.


The Prosecution Must Also Prove Intent


Under s. 21A, the prosecution must prove that:

  • the offender intended to cause a victim physical or mental harm or to any other person;

  • the requisite intention under Section 21A is established if the prosecution can prove beyond reasonable doubt that:

  • (a) the offender knew that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear; or

  • (b) the offender in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.


The Maximum Penalty for Stalking


Stalking carries a maximum of 10 years imprisonment, and is most often heard in the Magistrates' Court.


Defences to Stalking


Defending an allegation of Stalking will often involve a factual dispute at to the behavior alleged to be Stalking. Furthermore, a defence could be raised on the basis that the prosecution cannot establish the requisite intent to cause physical or mental harm to a victim as described above.


A factual dispute may be argued as to an accused's involvment in any of the alleged behavours said to amount to a course of conduct.


The availability of other defences, such as mental impairment will depend upon the particular circumstances of the alleged occasion of stalking.


Sentencing Outcomes for Stalking


As noted above the offence of Stalking is most often heard and determined in the Magistrates' Court. The Sentencing Advisory Council has provided a guide to the range of sentencing outcomes frequently imposed for this offence when the offence is finalized in the Magistrates' Court. In the period 1 July 2016 - 30 June 2019, the most frequent sentencing outcomes for the offence of Stalking were:


Adjourned Undertakings - 16.4%

Fine - 15.6%

Community Corrections Order - 31.9%

Imprisonment - 35.8%


Obviously, in any case, the outcome imposed will depend upon the objective seriousness of the alleged offending, and other policy matters such as whether the matter proceeds as a plea of guilty, or a finding of guilty after a contested case. Matters personal to an accused will also have a bearing on the outcome.


Update:


The Sentencing Advisory Council has published (04.03.2022) a report into the offence of stalking taking a deeper look at demographics, the spectrum of behaviours involved in the offence of stalking and sentencing outcomes for the offence.


Get Advice, Prepare Early if faced with an allegation of Stalking


An allegation of Stalking is serious.


If you are you intending to get criminal law representation for an upcoming court date or you have to attend a police interview, early preparation is important.


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Stalking Offence Melbourne

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