The Offence of Stalking in Victoria, What the Prosecution Must Prove.
Updated: May 24
Under Victorian law, stalking is considered a criminal offence that carries severe penalties.
In essence, to prove the offence of stalking in Victoria, prosecutors must establish beyond reasonable doubt that the accused engaged in a course of conduct, causing harm to another person.
Additionally, the prosecution must also show that this behaviour was intentional and without lawful excuse.
In this blog post, we'll discuss the offence of stalking in Victoria and what the prosecution must prove in order to secure a conviction for stalking in Victoria.
Table of Contents
Charged with a Stalking Offence?
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 involvement 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:
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.
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.
Stalking is a serious offence in Victoria that can have severe consequences for both the victim and the offender. As discussed, in this article, the prosecution must prove certain elements beyond reasonable doubt to secure a conviction, including that the accused engaged in repeated behaviour that caused fear or physical harm to another person. If you are facing charges of stalking in Victoria, it is crucial to seek legal advice immediately. A criminal defence lawyer can help you understand your rights and provide guidance on how best to defend against the charges. Remember that being charged with an offence does not automatically make you guilty. The prosecution still has a burden of proof, and there may be defences available depending on your specific circumstances. By understanding what constitutes stalking under Victorian law and what the prosecution must prove, you'll be better equipped should you ever find yourself facing these charges.
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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If you intend to secure the best outcome for your situation, simply call our office or book an appointment through our website.