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  • Stalking Offences and Penalties in Victoria (VIC)

    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.

    What is stalking?

    One commits the offence of stalking when they commit a repeated behaviour that can cause another person to:

    • Worry about their safety,
    • Develop fear of physical harm,
    • Suffer emotionally.

    What constitutes stalking in VIC?

    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:

    • Making contact with the victim or some other person;
    • Publication of information connected to the victim or another individual;
    • Causing an unauthorised computer operation to be performed;
    • Monitoring the victim's or another person's usage of the internet, emails, or other forms of digital communications;
    • Entering or lingering outside the victim's dwelling or place of business;
    • Causing damage to the property;
    • Making threats against the victim;
    • Using obscene or threatening language against or in front of the victim;
    • Doing harsh or disrespectful behaviours in the victim's presence;
    • Directing harsh or insulting behaviour against the victim;
    • Giving the victim insulating materials;
    • Spying on the victim or another person;
    • Acting in any other manner that may reasonably endanger or frighten the victim.

    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:

    • Sending a slew of unwanted texts and emails to an ex-partner;
    • Trying to call an ex-partner repeatedly after they have asked you to stop;
    • Unauthorised access to a person's social media page;
    • Continuing to follow an ex-partner around, for example, to work or school;
    • Parking in front of someone's home and keeping an eye on their moves;
    • Sending texts to coworkers informing them that you are about to send an email with a humiliating picture of them attached;
    • Cyberstalking.

    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:

    Intent

    The prosecution must establish the following under section. 21A of the Crimes Act 1958 (Vic):

    • ➢ The perpetrator meant to inflict bodily or emotional damage to the victim or another person;

    Rationality and reason

    • ➢ The prosecution establishes the required purpose under Section 21A if it establishes beyond a reasonable doubt that:
    1. The offender was aware that participating in such behaviour would likely result in such injury or generate such apprehension or fear; or
    2. The offender should have realised that indulging in that course of action would almost certainly result in such injury or generate such worry or terror, and it did.

    Different forms of Stalking in VIC

    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:

    • Taking photos of the complainant without their permission,
    • Keeping track of the movements of a next-door neighbour.

    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:

    • Constantly standing outside the victim’s gym, for no lawful course, at times when the complainant is there;
    • Walking by the victim’s house frequently when the complainant gets home from school or work;
    • Sitting in a parked automobile outside the victim’s home or place of employment for no other legitimate reason.

    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.

    The Maximum Punishment for Stalking in Victoria

    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.

    Defences for a Stalking Offence in Victoria

    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:

    • Enforcing criminal laws;
    • Enforcing civil law;
    • The enforcement of any Act;
    • The enforcing of a law that carries a monetary penalty;
    • The carrying out of a warrant;
    • The security of public money;

    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.

    Intervention Orders

    There various forms of intervention orders in Victoria:


    • Personal Safety Intervention Orders (PSIOs)

    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.

    1. Somebody who has previously been involved in criminal activity;
    2. Ex-partners, in particular, feel entitled to or have a significant influence over you;
    3. A person who has been stalking you for a great many years.

    • Family violence intervention orders (FVIOs)

    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:

    • Not to pursue, harass, frighten, or distress the complainant or others directly or indirectly (whether alone or via proxies);
    • Not to enter within the limit of (explicitly state street or road name and include a copy of annotated maps to explain boundaries) any facilities where the complainant or others, as necessary, dwell, work, or visit;
    • Not to call, fax, write, text, email, or use the internet to connect with the victim or others, or to convey or seek any communication;
    • Not to post any material about the victim on social networking platforms such as YouTube, Facebook, and Twitter;
    • Not to keep, record, or investigate private, secret, or personal facts or information about the victim or others in any way; or
    • Forbidden to use a different surname or change name without first informing the courts or the police.

    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;

    • The marriage or relationship history, especially if there has been abuse in the past;
    • Prior convictions for comparable types of behaviour;
    • Injuries, including mental harm;
    • If or whether the perpetrator intended the harassment;
    • Effects on any third person (spouse, friend, family, neighbours, or coworkers);
    • Any civil orders issued, such as non-molestation orders or injunctive relief;
    • The chance of the accused committing another offence;
    • The perpetrator's current relationship with the victim; and
    • The victim's feelings about their future safety or that of others if a restraining order is issued or not issued.

    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.

    Contravention of a Restraining Order in Victoria

    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:

    • Incarceration term;
    • Fine;
    • A bond for good behaviour or other punishment;
    • There is a good chance the offender will have a criminal record as well.

    Defence to Contravention of an intervention order

    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.

    Does a Stalking Offence in Victoria show up on a national criminal history check certificate?

    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.

    Sources

    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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