Unlawful Stalking

Stalking is a phrase we have all heard of in our day-to-day lives.

However, our lawyers commonly receive questions about it.  They are regularly asked exactly what behaviour amounts to unlawful stalking.  Many clients are caught off-guard by the wide-ranging definition of unlawful stalking and the actions it covers.

This article aims to provide a broad overview of unlawful stalking in Queensland, including the legal definition, what is not considered to be unlawful stalking, potential defences and consequences that may result following a conviction.

What is unlawful stalking?

Unlawful stalking is conduct:

1. Intentionally directed at a person (the stalked person); and
2. Engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and
3. Consisting of 1 or more of the following;

• • following, loitering near, watching or approaching a person;
  • contacting a person in any way, for example, using any technology and over any distance;
  • loitering near, watching, approaching or entering a place where a person lives, works or visits;
  • monitoring or tracking a person’s movements, activities or interpersonal associations without the person’s consent (this can include using a tracking device or drone to track a person’s movements, checking the recorded history in a person’s digital device, reading a person’s SMS messages, monitoring a person’s email account or internet browser history, monitoring a person’s account with a social media platform or online social network);
  • leaving offensive material where it will be found by, given to or brought to the attention of, a person;
  • publishing offensive material on a website, social media platform or online social network in a way that will be found by, or brought to the attention of, a person;
  • giving offensive material to a person, directly or indirectly, including by using a website, social media platform or online social network;
  • an intimidating, harassing, threatening, humiliating or abusive act against a person, whether or not involving violence or a threat of violence (for example, publishing a person’s personal information, including their home address or phone number);
  • an act of violence, or a threat of violence, against, or against property of, anyone, including the person charged; and

4. that:

• • would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or
  • causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.

The law makes it clear that the following circumstances do not give rise to a defence:

• If a complainant is not aware of the stalking;
• If a person has mistaken the identity of the stalked person;
• If the stalking was carried out in relation to another person or another person’s property;
• That the person charged had no intention to cause apprehension, fear, or to cause detriment to the complainant; or
• That apprehension or fear was not actually caused.

What behaviour is not considered unlawful stalking, intimidation, harassment or abuse?

• Acts done in the execution of a law;
• Acts done for the purposes of a genuine industrial dispute;
• Acts done for the purposes of a genuine public dispute or issue carried on in the public interest (for example a genuine political dispute);
• Reasonable conduct engaged in by a person for the person’s lawful trade, business or occupation;
• Reasonable conduct engaged in by a person to obtain or give information that the person has a legitimate interest in obtaining or giving.

What is the penalty for unlawful stalking?

The wide range of behaviour that can amount to stalking, has seen the courts acknowledge that there is no well-defined penalty for offences of this nature.

For this reason, the range of punishments for unlawful stalking is incredibly broad and each case will be determined by its own unique factors.

Following conviction for unlawful stalking without any “aggravating” factors, the maximum penalty is 5 years imprisonment. Offences of this nature are dealt with in the Magistrates Court, unless the charged person decides to have a trial before a jury in the District Court.

The maximum penalty increases to 7 years if any of the following circumstances arise:

• A person uses or intentionally threatens to use, violence against anyone or anyone’s property;
• A person possesses a weapon;
• A person contravenes or intentionally threatens to contravene an injunction or order imposed or made by a court or tribunal, such as a Domestic Violence Order; or
• A domestic relationship existed between the complainant and convicted person.

The maximum penalty increases to 10 years if the acts were committed against a law enforcement officer investigating the activities of a criminal organisation.

In addition, regardless of whether the person is found guilty or not guilty, or the charge is withdrawn, if the Court considers it desirable, a restraining order can be made.

When should advice be sought?

The ideal time for a person to seek legal advice is when they become aware of a stalking complaint having been made to police.

The law around unlawful stalking is complex, it is important to be aware of, firstly whether the behaviour in question can amount to unlawful stalking, secondly repercussions that may flow on following the conclusion of a case, and thirdly, important tactical decisions that can be made from the early stages of a matter.

At Potts Lawyers, we have a team of experienced criminal defence lawyers who can advise you and liaise with the police regarding your matter. Enquire today on (07) 3221 4999 for Brisbane, or (07) 5532 3133 for the Gold Coast.