Stalking (Tas)

Stalking behaviour is persistent action intended to exert influence or control over another person. A stalker acts in certain ways intending to awaken fear in the victim. For instance, following their victim, calling regularly or sending unwanted and disturbing messages to their victim. They may also escalate to other criminal behaviour, such as breaking into their victim’s home, vandalising their property or threatening harm to the victim or their loved ones. Victims often experience intense feelings of discomfort, loss of control, harassment and intimidation. Stalking is a serious criminal offence in Tasmania. This article defines the crime of stalking in Tasmania.

Stalking In Tasmania

Stalking patterns of behaviour are particularly common in cases of domestic and family abuse. A person who leaves an abusive relationship is particularly at risk of being stalked. In Tasmania, a former spouse or de facto partner can obtain legal protection through a Family Violence Order or Restraint and Protection Order. This Restraint Order is a court order that instructs a stalker to stay away from their victim and make no contact. If a stalker violates the order’s restrictions, they can face severe criminal charges.

While a victim may know their stalker, this is not always the case. The perpetrator may have no previous acquaintance with the victim. Anyone who experiences stalking or fears for their well-being should immediately contact the police.

The Criminal Code Act 1924 empowers the authorities to arrest, prosecute and sentence those who commit a stalking offence. A victim may not realise that they are being stalked until they notice a pattern of suspicious or unusual events. Crucially, stalking can include not only actions against the victim themselves but also against other individuals in the victim’s life, such as their partner. Tasmanian law broadens the offence to include a victim’s fear that the stalker will harm someone with whom they are in a domestic relationship.

Under the Criminal Code, behaviours that may constitute stalking include:

  • Following or surveilling the victim or a third party (typically the victim’s friend, partner or family member);
  • Loitering outside a place that the victim frequents, such as their house or workplace, or loitering near a third party;
  • Entering the victim’s home without permission or interfering with the victim or third party’s property;
  • Sending the victim or a third party malicious content or leaving offensive material where it is likely to be seen by the victim or third party;
  • Publishing or transmitting offensive material via electronic or other methods in a way that it is likely to be seen by the victim or third party;
  • Using electronic communication (including the internet) in a way that the victim might reasonably be nervous or afraid (also known as cybercrimes); or
  • Contacting the victim or third party via telephone, post, electronic or other communication means. For instance, a perpetrator might send harassing emails to a victim every day for several weeks.

Establishing The Crime Of Stalking

Convicting someone of stalking requires the state to establish beyond a reasonable doubt that the accused committed the crime. As such, the prosecution needs to show that the accused’s behaviour constituted stalking and that they had an intention to cause their victim fear. It is a fundamental element of the crime that the offender must have the intention to provoke fear, apprehension, or psychological or bodily injury. Essentially, the perpetrator must understand that their actions will cause wariness and fear.

The prosecution is not required to demonstrate that the victim actually suffered from apprehension or fear of violence. The prosecution must only prove that a reasonable interpretation of the offender’s actions would cause detriment, concern or fear of violence. The court considers the accused’s history of violence when determining whether their behaviour constitutes stalking.

Defences

A common defence to a stalking charge is that the accused lacked the required intent and had no intention to cause fear of harm. The accused can also present a defence by giving a valid reason for the suspect behaviour, such as working or living in the same building as the victim. The following general criminal law defences also apply under section 192 of the Criminal Code.

  • Necessity, as the perpetrator was compelled by someone else to commit the offence under threat of harm;
  • Duress, as the perpetrator stalked the victim because of undue persuasion or pressure from another person;
  • To implement state or federal law;
  • Executing a law imposing a financial penalty;
  • Carrying out a judicial warrant; or
  • Safeguarding public funds.

Penalty For Stalking In Tasmania

When the court determines the punishment for stalking, it considers the circumstances of the offence and any aggravating factor. The maximum penalty for stalking in Tasmania is twenty-one years imprisonment.

Contact the criminal law team at Go To Court on 1300 636 846 for further information on stalking in Tasmania. Our experienced solicitors can answer any questions you have about the criminal offence and sentencing or represent you in court.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Armstrong Legal in 2020.
Legal Hotline - Call Now 7am to midnight, 7 days