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  • Home Resources & Technical Articles Criminal Offence Topics (A to Z) Stalking Offences Stalking offences and penalties in Western Australia (WA)

    Stalking offences and penalties in Western Australia (WA)

    The state of Western Australia is concerned about stalking-related violations. Even though the definition of the word "stalking" may vary in the legislation from one state to another within Australia, it is nonetheless considered a crime that is penalised by law.

    In Western Australia (WA), stalking offences are punished under section 338E of the Criminal Code Act Compilation Act 1913 (WA).

    If you are convicted for the offence of stalking in WA, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check in WA.

    Stalking offence in WA

    Many of us use the phrase "stalking" to describe a joke, such as telling someone you "stalked" their Facebook page. Stalker crimes are grave, and victims may suffer horrifying consequences. Stalkers behave in ways that make the victim feel threatened. They may have a personal relationship with their victims, such as an ex-partner or a spouse, or they may know nothing about them at all.

    Under the WA’s criminal code, for a person be a stalking offender, they either commit one of the following;

    • When they are pursuing another person or a third party with the intentions of intimidating them or,
    • When they are pursuing someone else or a third party in a way that could be termed as "intimidation," and in the process, succeed to intimidate them.

    The term "intimidation" might refer to one of the following practices;

    • An act that is intended to cause fear to its victims;
    • An act that is intended to cause psychological or physical harm to its victims;
    • An act that is intended to hinder another person from doing a lawfully accepted act against their will or wishes;
    • An act committed with clear intentions of forcing another person to commit an unlawful act against their wishes.

    On the other hand, the term 'pursuing' could mean one of the following under Western Australian law;

    • The continuous, persistent communication to a person who does not want to talk to you, whether directly or indirectly, and in any form of communication whatsoever;
    • The continuous monitoring of another person's home, workplace, or their hangout place, etc.;
    • The continuous act of sending unsolicited items to a person who does not want them;
    • The continuous act of following another person or
    • The continued practices of the above tendencies against a restraining order or bail.

    An offence occurring under ‘aggravated’ circumstances usually constitutes a longer jail term sentencing as compared to other violations. Therefore, the term ‘aggravated circumstances’ might mean one of the following scenarios;

    • If either immediately before, during, or after the offence or attempted offence, the accused appears to be dangerously armed with an offensive item or weapon;
    • If the accused's conduct by committing the offence led to a breach in a condition that constitutes the granting of bail.

    When deciding whether the accused indeed pursued the plaintiff, but the following considerations went into play beforehand;

    • If the defendant didn't know that the pursued person dwelt, worked, or happened to be in the particular vicinity of the place of accusations, their actions are not to be taken into account;
    • If the accused had no intention of speaking to the stalked person in an event where they happened to meet, and they have the proof, then the accusation of stalking may be irrelevant.

    Is stalking a summary offence or an indictable offence in Western Australia?

    Crimes are defined as indictable offences in WA, whereas summary offences are defined as ‘simple offences’ in WA.

    In WA, there is a third category of offences called an ‘either way offence’. These are classified into two groups based on their conditions.

    Stalking is classified as an ‘either way offence’; It may be dealt with as a summary or indictable offence, depending on the circumstances.

    Indictable offences are major criminal offences that carry severe punishments.

    Indictable cases begin in a Magistrate’s court but are typically transferred to superior courts. These matters are tried in the higher courts since indictable crime cases are only conceivable on indictment under section 3(2) of the Criminal Code Act Compilation Act 1913 (WA). In plain English, the accused has the right to have their case heard by a judge or jury. Thus, an indictable hearing usually is not held in lesser courts such as a Magistrates Court unless specifically authorised by statute (for example, if the offence attracts imprisonment time of fewer than two years).

    If a stalking case proceeds to the Supreme Court or District Courts of Western Australia, the maximum penalty is three years imprisonment or eight years imprisonment if the offence was committed under aggravating circumstances.

    According to section 3(6) of the Criminal Code Act Compilation Act 1913 (WA), indictment cases may be prosecuted at any moment, unless and until a legal change provides otherwise. It means there is no time restriction on the initiation of an indictment offence trial.

    If you face stalking charges for the first time and are not subject to a restraining or protection order, the police will likely charge you with stalking under the category of simple offences.

    In WA, the law uses "offence" to refer to a summary (simple) offence rather than a 'crime' under WA’s Criminal Code.

    The Magistrates Court has exclusive summary jurisdiction in WA over all simple offences. The State is typically represented in these instances by a Police Prosecutor. One must prosecute summary offences within one year of the alleged violation.

    Punishment for a Stalking Offence in WA

    If the Magistrate's Court settles the matter, the maximum penalty is Eighteen months in jail and a $18,000 fine, or two years in prison and a $24,000 fine if the offender commits the crime under aggravating circumstances.

    If an offender is found guilty of stalking with the intent to intimidate, the maximum penalty is 12 months in jail and a $12,000 fine.

    Different forms of stalking in WA

    Stalking occurs in different forms and categories. In WA, stalking might occur under one of the following scenarios;

    • Monitoring one's whereabouts continuously

    Repeatedly watching another person's home, their place of work or their site of hanging out. Especially with the intent of causing fear or apprehension and the victim does not want you around. On occasion, the stalker might be harmless and their intentions may be on re-establishing a domestic or romantic connection. If the other person does not feel the same way and fails to respect their decisions, it may be a stalking offence.

    • Continuous unwelcomed communication

    Communication in today's world is on another level altogether, with social media, emails, and such. The technology we have today makes it even easier for the stalker. If you continue to send unwelcomed communication, either by text, phone calls, etc., this becomes stalking. WA law does not take it lightly, especially when the victim feels intimidated or is fearful, following a plea to cease the communication from your side. Section 338D (1, a) clearly states that persistent and unwanted contact constitutes stalking in WA.

    • Continuously sending unsolicited items

    • Continuously following another person

    • Breaching a restraining order

    Required proof from the police department

    When a stalker commits an offence, the relevant statutory provision will be used to prosecute them. However, some of these behaviours are not considered to be a criminal offence. To prove a stalking offence in Court, the prosecution will be required to;

    • Prove that the accused had every intention of intimidating their victims;
    • Prove that the accused pursued the victim;
    • Prove that the accused person repeatedly followed their victim.

    For the offence to become punishable, the police should provide;

    • Proof that the victim was intimidated;
    • Proof of a repeated pursuit that was expected to cause intimidation;
    • Proof that the accused indeed pursued the victim.

    Defences to a stalking offence in WA

    There are possible defences that may justify an alleged stalking violation. For the accused, such possibilities include;

    • Mental instability; Conditions such as depression are a common argument against stalking charges.
    • You had a lawfully right of making the pursuit; including engaging in a legal industrial action;
    • As the accused, you had no idea that the plaintiff resided, worked, or spent time in the area you are charged with continuously monitoring;
    • The accused did not intend to communicate with the plaintiff;
    • The accused did not intend to threaten or intimidate the plaintiff.

    Does a Stalking Offence in WA show up on a Nationally Coordinated Criminal History Check certificate?

    If an individual is convicted in WA 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 WA.

    Individuals and corporate customers can obtain a police check online via the Australian National Character Check - ANCC® website.

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