Stalking (ACT)

In the ACT, the offence of stalking is contained in section 35 of the Crimes Act 1900. Stalking is a serious offence particularly when it occurs in breach of a court order or when the use of a weapon is involved. This page deals with stalking in the ACT.

Stalking laws in the Australian Capital Territory are designed to protect individuals from persistent unwanted behaviour that causes fear, apprehension, or harassment. The legislation recognises that stalking can have severe psychological and emotional impacts on victims, even when no physical harm occurs. Understanding these laws is crucial for both potential victims seeking protection and individuals who may be facing stalking charges.

What is stalking?

In the ACT, stalking is defined as following a person, approaching or watching a place that a person lives, works or visits, surveilling a person, interfering with property in a person's possession, giving or sending offensive material to the person, contacting a person, sending messages about a person to someone else, or making messages about the person available to other when the behaviour occurs on two or more occasions and is done:

• with intent to cause apprehension or fear;
• with intent to cause harm; or
• with intent to harass.

'Harm' may be physical or psychological harm.

A person will be taken to have intent if they know or are reckless as to whether their behaviour will cause any of the above outcomes.

It is not necessary for a court to be satisfied that the person stalked (or another person) actually feared or apprehended harm or was harassed.

A person does not commit an offence if the behaviour is reasonable conduct that is a part of the accused's employment and does not cause harm.

Elements of Stalking Behaviour

The Crimes Act 1900 provides a comprehensive definition of stalking behaviour that encompasses both physical and digital forms of harassment. Modern stalking often involves cyberstalking through social media platforms, email harassment, or GPS tracking. The law also covers traditional forms such as physical surveillance, following someone's routine, or leaving unwanted gifts or messages.

Pattern of Behaviour Requirement

Crucially, stalking requires a pattern of behaviour occurring on at least two separate occasions. This distinguishes stalking from single incidents of harassment or intimidation. The occasions need not be consecutive, and there is no specified timeframe within which they must occur. Courts will consider the overall pattern and context of the alleged behaviour when determining whether stalking has occurred.

Penalty for stalking

The maximum penalty for stalking in the ACT is two years imprisonment. However, longer penalties apply in some circumstances. The below table sets out the maximum penalty that applies to stalking offences in different circumstances.

Sentencing Considerations

When determining an appropriate sentence for stalking offences, ACT courts consider various factors including the duration and intensity of the stalking behaviour, the impact on the victim, any previous criminal history, and whether the offence was committed in breach of existing court orders. Courts may impose alternative penalties such as community service orders, good behaviour bonds, or intensive correction orders depending on the circumstances of the case.

Enhanced Penalties

Enhanced penalties apply when stalking occurs in certain circumstances, such as when committed in breach of a protection order, when a weapon is involved, or when the behaviour is part of a pattern of family violence. These aggravating factors reflect the increased seriousness of the offence and the greater risk posed to victims.

Aggravated offence

An offence is aggravated if it occurs in the context of family violence.

Under the Family Violence Act 2016 (ACT), family violence encompasses behaviour by a person towards a family member that is physically, sexually, emotionally, psychologically or economically abusive, threatening, coercive or controlling, or causes the family member to be fearful. When stalking occurs within this context, it is treated more seriously by the courts due to the particular vulnerability of victims and the complex dynamics involved in family violence situations.

Protection Orders and Stalking

Victims of stalking in family violence contexts may seek protection through Family Violence Orders or Personal Protection Orders. Breaching such orders while engaging in stalking behaviour constitutes a separate offence and can result in additional penalties. These orders can include specific conditions prohibiting contact, approach, or communication with the protected person.

Defences

A person who is charged with stalking may defend the charge by arguing that they did not have the requisite intention or that their conduct was a function of their employment and was not harmful.

Lack of Intent

The most common defence to stalking charges is demonstrating that the accused lacked the necessary intent to cause fear, harm, or harassment. This defence requires showing that the behaviour was not intended to cause the prohibited outcomes and that the accused was not reckless as to whether such outcomes might occur.

Legitimate Purpose Defence

Section 35 of the Crimes Act 1900 provides a specific defence where the behaviour was reasonable conduct carried out as part of the person's lawful employment or professional duties. This might apply to journalists, process servers, debt collectors, or private investigators, provided their conduct was reasonable and did not cause harm.

Evidence and Investigation

Stalking cases often rely heavily on documentary evidence such as text messages, emails, social media communications, photographs, and CCTV footage. Victims are encouraged to maintain detailed records of all incidents, including dates, times, locations, and descriptions of the alleged stalker's behaviour. Phone records and GPS data may also be crucial in establishing patterns of behaviour.

Digital Evidence

With the prevalence of cyberstalking, digital forensic evidence has become increasingly important. This includes metadata from electronic communications, IP address tracking, and analysis of social media activity. Law enforcement agencies have specialised units trained in collecting and preserving digital evidence for stalking prosecutions.

Jurisdiction

Most stalking matters are dealt with in the Magistrates Court. If a stalking charge is aggravated and involves allegations that a weapon was involved or that the offence was in breach of a court order, the matter may be dealt with in the Supreme Court if parties do not agree to the matter being finalised by a magistrate.

The ACT Magistrates Court has jurisdiction to hear most stalking matters, with proceedings typically commencing by way of summons. More serious stalking charges, particularly those involving weapons or breaches of court orders, may be heard in the ACT Supreme Court. The choice of jurisdiction can affect both the potential penalties and the procedural aspects of the case.

Frequently Asked Questions

What should I do if I believe I am being stalked?

If you believe you are being stalked, document all incidents with dates, times, and descriptions of the behaviour. Report the matter to ACT Policing and consider seeking legal advice about obtaining a protection order. Keep all evidence such as messages, emails, or photographs, and inform trusted friends or family members about the situation for your safety and to provide potential witnesses.

Can stalking charges be laid even if the victim doesn't feel threatened?

Yes, under section 35 of the Crimes Act 1900 (ACT), it is not necessary for the court to be satisfied that the victim actually feared harm or felt harassed. The offence is complete if the accused intended to cause fear, harm, or harassment, or was reckless as to whether their behaviour would cause these outcomes, regardless of the victim's actual response.

What is the difference between stalking and harassment in the ACT?

While stalking