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Every state and territory in Australia has stalking legislation, and it is a serious offence. While the definition of stalking varies by jurisdiction, it essentially consists of a pattern of intrusive acts that intimidate and frighten its victims. Stalking in Victoria is punishable under Section 21A of the Crimes Act 1958 (VIC)
If you are convicted for the offence of stalking in Victoria, the offence will show up as a disclosable court outcome (DCO) on a national criminal history check in Victoria.
One commits the offence of stalking when they commit a repeated behaviour that can cause another person to:
The state of Victoria considers stalking an indictable offence. The Court can hear and decide the offence summarily. It means the Magistrate’s Court in Victoria can hear and determine the matter, and most stalking offenders are tried in this Court.
In Victoria, one commits a stalking offence if they do any of the following while aiming to cause mental or physical damage to the targeted person:
However, this does not apply to stalking behaviour undertaken to implement the law, carry out a warrant, or safeguard public resources.
An action that might lead to a stalking charge include the following:
The Stalking Offence's Elements: What the Prosecution Must Prove
The Actus Rea of a stalking offence in Victoria is established if the police can prove that the offender participated in conduct that includes behaving in a manner that one may reasonably anticipate creating concern or fear in the complainant for their own or another person's safety.
Mens Rea for stalking is a purpose to inflict bodily or mental damage or instill fear or worry in the victim for their own or another person's safety. The stalking offence is comprised of two components, which are as follows:
The prosecution must establish the following under section. 21A of the Crimes Act 1958 (Vic):
Rationality and reason
Section 21A(2f): Keeping the victim under surveillance
It is prohibited to record or observe someone else's activities to keep them under surveillance.
Examples of this kind of offence include:
Section 21A(2)(a): Following the Victim
It is illegal to follow another individual to cause fear or mental injury.
The prosecution must show that the defendant followed the victim from one location to the next. The accused is not required to walk immediately behind the complainant to constitute a stalking offence in Victoria.
This crime, nevertheless, will not be substantiated if the accused only observes the victim go by just once.
Section 21A(2)(c): loitering
If a person arrives or loiters around and near the victim’s house, workplace, or any other area frequented by the victim, they may be accused of stalking.
As an example:
The prosecution must show that the defendant loitered with the purpose to inflict bodily or mental injury to the victim or to instil worry or apprehension in the victim’s mind about their safety.
Stalking (according to Section 21A of the Crimes Act of 1958) is a severe criminal offence punishable by up to ten (10) years in jail.
It is, however, an offence that a jury can handle the charges summarily in Victoria before the Magistrates' Court, which can only prescribe a maximum sentence of two years in prison.
Incarceration is usually reserved for the most severe cases of stalking, while Community Correction Orders (CCOs) with the provision that the accused participate in a behavioural modification program or therapy are a more typical sentence consequence.
According to Section 21A(4A) of the Crimes Act 1958 (Vic), an accused charged with stalking in Victoria has a defence if they can persuade the Court on the preponderance of probability that their activity is legitimate.
Thus, there are particular exceptions to the Stalking crime when the defence can show that the activity was not intentional and was carried out in the ordinary course of business. Such exceptions include when the behaviour is connected to official responsibilities, such as those of a police officer.
As a result, the law does not consider someone a stalker if they are doing official obligations for the following reasons:
It can also arise when the behaviour is tied to an industrial dispute or for legal political purposes. Other defences include:
Mental Disability: If the accused was suffering from a severe mental impairment at the time of the offence, the jury might dismiss the stalking charges against them.
Impossibility: Because of their physical abilities or other characteristics, the defence lawyer may argue that the accused could not have committed the crime.
Lack of Intent: The defendant may allege a lack of purpose, notably if they did not intend to hurt the victim.
Factual and Identification Dispute: In most Australian jurisdictions, mistaken identification may be used as a defence against stalking.
There is no course of behaviour: If the behaviour was not malevolent and was carried out in the ordinary course of the business, the Court may consider it an exception.
A Magistrate can issue a personal safety intervention order to keep the stalker away from you. It instructs them not to contact you in any manner. It's possible to file criminal charges against a stalker if they don't adhere to these instructions.
If you believe or are sure that you are being followed, you may get a personal safety intervention order. Some stalkers, however, such as those listed below, are more difficult to stop using a personal safety intervention order.
FVIOs apply to circumstances involving family members, notably past intimate partners and specific caregivers. PSIOs relate to all other relationships.
For FVIOs and PSIOs, the goal is to create a civil protection arrangement for domestic violence and non-family assault stalking.
In some ways, the dynamics of family violence and non-family violence stalking are similar - both include a continuous pattern of behaviour that dominates or controls the victim or leads them to feel afraid.
Because the proper administration of a restraining order may play a key role in mitigating a victim's risks and avoiding additional harassment, the investigation teams often advise the victim to apply for restraining orders as soon as feasible.
The police may issue personal safety intervention orders if they consider a person is in danger. Even if the protected person doesn't want an order to be issued, the police may still use it.
Authorities often design restraining orders to the specific dangers shown in each instance rather than rehashing standard terms.
Terms often seen in intervention orders in Victoria (VIC) include:
A lawyer needs to review the order for correctness (both it's content and wording). The victim's lawyer may not deal with violations adequately if the order is drafted incorrectly.
Rather than punishing the criminal, the goal of the order is to protect victims (or other identified persons) from future abuse or potential violence. The order may be given for a set or indefinite amount of time, putting the burden on the criminal to demonstrate to the courts that they no longer pose a danger to the complainant.
The restraining order is issued during the sentencing process. If your stalker is a repeat offender, it is important to notify authorities. Items to include in this information are;
Restraining orders are also often considered if the offender gets a custodial sentence. It is easy to harass or incite fear of violence from jail through telephones, mail, or proxies.
Even after a court has granted a restraining order against the stalker, they may continue to stalk. If this is the case, it's possible to be charged with a criminal offence.
If someone violates the terms of an intervention order, a FVSN (Family Violence Safety Notice), or a counselling order, it is referred to as a breach.
The Court has a zero-tolerance policy for violations of intervention orders. Respondents who are convicted of this crime may be eligible for:
The defendant's principal defence to a breach of criminal or civil order, including stalking offences, is that they have a good explanation. The defendant has the onus of proof to show that on the balance of probabilities.
If an individual is convicted in Victoria for the offence of Stalking, the offence will show up as a disclosable court outcome (DCO) on the results of their criminal record check. The offence will get disclosed on a criminal history check in accordance with the Spent Convictions Scheme in Victoria.
Individuals can obtain a police check online via the Australian National Character Check - ANCC® website.
Crimes Act 1958 (Vic) - https://www.legislation.vic.gov.au/in-force/acts/crimes-act-1958/292
Crimes Act 1958 (Vic) (Austlii References) - http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/ca195882/s21a.html
Sentencing Advisory Council of Victoria (Sentencing Principles, Purposes, Factors) - https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-principles-purposes-factors
Victorian Law Reform Commission (Stalking Consultation Paper) - https://www.lawreform.vic.gov.au/publication/stalking-2/5-criminal-law-responses-to-stalking/
Judicial College of Victoria (Stalking from 7/6/11) - https://www.judicialcollege.vic.edu.au/eManuals/CCB/46773.htm
Legal Aid Victoria (Personal Safety Intervention Orders) - https://www.legalaid.vic.gov.au/find-legal-answers/personal-safety-intervention-orders
Magistrates' Court of Victoria (Intervention Order Breaches (FVIO)) - https://www.mcv.vic.gov.au/intervention-orders/family-violence-intervention-orders/intervention-order-breaches-fvio
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