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  • Home Resources & Technical Articles Criminal Offence Topics (A to Z) Stalking Offences Stalking Offences and Penalties in the Australian Capital Territory (ACT)

    Stalking Offences and Penalties in the Australian Capital Territory (ACT)

    To stalk someone is a crime in the Australian Capital Territory (ACT). Thus, stalking someone to cause them to fear or feel they are in danger or hurt them directly can attract severe legal penalties.

    Typically, the maximum punishment for this crime is two years in jail. However, it may rise to five years in prison if the perpetrator had an offensive weapon or if the crime was conducted against a court order.

    The offence of Stalking in the ACT is outlined in Section 35 of the Crimes Act 1900 (ACT).

    If you are convicted of a stalking offence in the ACT or Canberra, the offence will show up as a disclosable court outcome (DCO) on a national police check in the ACT.

    Stalking as an Offence

    In the Australian Capital Territory, stalking is a common precursor to domestic violence, especially among divorced and separated partners. As a result, stalking someone to instill terror in them or a third party is prohibited in the Australian Capital Territory (ACT).

    It doesn't matter about the offender’s reasons for doing it and whether the victim indeed suffered substantial harm due to the stalking act.

    The law will assume a person to have committed a stalking offence if they knew or were reckless to the knowledge in any of the following circumstances:

    1. The person takes part in the behaviour,
    2. The behaviour is violence or the threat of violence,
    3. The brutality or threat is aimed towards another party,
    4. Two or more other people present are also partaking in conduct that is violence, or the threat of violence, directed towards someone else,
    5. The conduct of the person and the other people taken together would likely cause a reasonable person to fear their safety.

    As a result, stalking someone to instil terror in them or a third party is prohibited in the Australian Capital Territory (ACT).

    It doesn't matter your reasons for doing it and whether the victim indeed suffered substantial harm due to the stalking act. Stalking someone to cause them harm is a more severe offence. In the Australian Capital Territory (ACT), there are strict penalties for stalking.

    A five-year jail sentence awaits a stalker who:

    • In the course of stalking, breach of a court-issued injunction or order;

    or

    • The offender had an offensive weapon in their possession.

    Otherwise, the stalker can face a two-year prison sentence.

    Stalking law in the ACT

    According to Section 35 of the Crimes Act 1900 (ACT), someone is guilty of stalking if, at least twice, they:

    1. Pursue or approach the other individual,
    2. Lingering close, watching an approach, or entering an area where the other person lives, works, or visits constitutes,
    3. Maintain a watchful eye on the other individual,
    4. Infringes on the other person's right to property,
    5. Provides or transmits offensive material to the other person or leaves offensive material where it is likely to be discovered, provided to or brought to the other person's notice,
    6. Makes touch with the other party via phone or in some other way,
    7. In a way that may reasonably be anticipated to generate worry or terror in the other person, behaves secretly,
    8. Conducts acts of intimidation, bullying, or molestation on the other person.

    It is not essential to establish that a victim or a third party has been threatened with significant harm to prosecute the offender.

    Consequently, it is critical to highlight that proof of the following is not required to prosecute an infraction under this section:

    • Someone who was being stalked was prevented from doing damage;
    • The stalked individual worried for their safety; or
    • Aside from the stalked individual, someone else saw danger; or
    • Someone else (not the stalker victim) felt afraid for their safety; or
    • The individual who was being stalked was also being harassed in other ways.

    When it comes to the law, injury means:

    Unconsciousness, pain, deformity, and any physical touch that may be objected to under the circumstances, whether or not that contact was known at the time of the encounter, are all examples of "physical damage".

    The term "injury to mental health" encompasses both psychological damage and physical sickness. Irrespective of how long the injury lasted, it's still a problem.

    In the Australian Capital Territory (ACT), stalking is a serious offence that carries a significant penalty. The legal system may charge stalkers with stalking if they follow another person to harass, intimidate, frighten, or harm that person or someone else.

    Exempting Circumstances to Stalking

    The section exempts those that carry acts that are presumed to be stalking within reasonable conduct in line with employment. It is not an offence if the person's act was part of a function of employment or other legally permitted act. It includes actions that are:

    1. The enforcement of the criminal law; or
    2. The administration of any Act; or
    3. The enforcement of a law imposing a pecuniary penalty; or
    4. The execution of a warrant; or
    5. The protection of the public revenue.

    It must be ascertained that the person engaged in the course of conduct without malice, and the act was done while in the ordinary course of a lawful business, trade, profession, or enterprise; or for an industrial dispute; or to engage in political activities or discussion or communication concerning public affairs.

    The courts can also exempt a person from punishment if you can prove it that;

    • They acted under duress hence had little or no choice.
    • It was an act of necessity.
    • The person had a legitimate reason for the behaviour for instance, the accused lives in the same block as the other person.

    What Constitutes Stalking

    You might be doing an action without knowing it constitutes a charge for stalking. You can also be a victim of stalking and not be aware. Here are some of the behaviours that can describe stalking.

    You are going after your ex-partner, following them, making phone calls at night with the hopes of getting back together. You may think it's romantic, but if the other person feels harassed, you are stalking them.

    You are in love with someone and develop an obsession, and you keep tracking and making contact with the person even after they ask you not to.

    After a full out with a person, you threaten them or their family, promising to harm them. You send messages through telephone or emails showing that you know the schedules and whereabouts of the victims to make your threat real.

    Other examples include and are not limited to the following actions against the will of the victim;

    • You Constantly give someone flowers and other things,
    • Standing outside another person's house and watching them,
    • Randomly showing up at places the person (stalked) frequents or calling them constantly at the gym or work.

    It must be shown that the action in question must have been intended, or if the individual knows that, (or is reckless about) whether stalking the other person would be likely;

    • To cause apprehension or fear of harm in the person stalked or someone else, or
    • To harass the person stalked.

    The accused must have acted on more than one occasion.

    Cyberstalking in the ACT

    As the name implies, cyberstalking is stalking carried out via the use of the computer or other technological channels. Typical forms of cyberstalking include receiving frightening, harassing, or scary email regularly; other examples include unsolicited communication with a person through a social networking website. It involves the use of electronic devices to:

    • Communicating with some other individual online in a demeanour that could logically be expected to cause dread or apprehension in that person; or
    • Communicating to others about the person online in a way that one could logically expect to cause anxiety or apprehension in the other person; or
    • Causing an unauthorised computer function in a computer owned or used by the victim or any other person; or
    • Tracing the victim's or any other person use of the internet or email; or other electronic communications; or
    • Keeping another person under surveillance.

    What to Do If You Suspect Stalking

    Before depending on the state enacted laws against stalking to assist you, there are steps you can take to protect yourself. You can;

    • Inform the people you trust about stalking. Sometimes the perpetrator may contact an unsuspecting family member and get information about you.
    • Avoid any contact, physical or electronic, with the stalker.
    • Keep your personal information private.
    • Report any online stalking to the e-safety commissioner.
    • Get a protection order in the ACT to stop the person from contacting you. Limiting the person from contacting reduces chances of harm from and by the culprit.
    • Learn some safety precautions that can caution you against the stalker, especially if the person is well known.
    • File a civil suit against the stalker, especially in cases where there is damage in property, and you require compensation.

    Court hearings concerning the issue will go on even if the culprit ignores the court order.

    A breach of the order will attract penalties, or in the case of a court case, the defendant may be issued with a maximum sentence.

    Will a Stalking Offence in the ACT show up on a national criminal history check certificate?

    If an individual is convicted in Canberra for the offence of Stalking, the offence will show up as a disclosable court outcome (DCO) on the results of their criminal background check. The offence will get disclosed on a criminal history check in accordance with the Spent Convictions Scheme in the ACT.

    Individuals can obtain a criminal background check online via the Australian National Character Check - ANCC® website.

    Sources

    Crimes Act 1900 (ACT) - https://www.legislation.act.gov.au/a/1900-40

    Section 35 of the Crimes Act 1900 (ACT) (Austlii Reference) - http://www5.austlii.edu.au/au/legis/act/consol_act/ca190082/s35.html

    E-safety commissioner - https://www.esafety.gov.au

    Australian Privacy Foundation (Australian Stalking Laws) - https://privacy.org.au/resources/privacy-law/australia/

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