Criminal law
Stalking and intimidation
These charges are built from a pattern of conduct rather than a single act, and much of that conduct can look unremarkable on its own. Messages, turning up, checking on someone. The question is what the course of conduct amounts to, and whether you knew it was likely to cause fear.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594.
The offences
Stalking and intimidation are a single offence, committed by doing either. Coercive control is a separate and newer offence that covers a broader pattern of abusive behaviour.
| Offence | What it requires | Maximum penalty |
|---|---|---|
| Stalking or intimidation with intent to cause fear of physical or mental harm | Stalking or intimidating another person, intending them to fear physical or mental harm | 5 years, or 50 penalty units, or both |
| Abusive behaviour towards a current or former intimate partner, known as coercive control | A course of abusive behaviour engaged in with the intention of coercing or controlling the other person | 7 years |
Stalking and intimidation matters usually stay in the Local Court, where the most a magistrate can impose is two years regardless of the maximum for the offence.
What the words actually cover
Intimidation
Conduct amounting to harassment or molestation. An approach made by any means, including telephone, text, email or other technology, that causes a person to fear for their safety. Or any conduct causing a reasonable apprehension of injury to a person, to someone they have a domestic relationship with, or to their property, or of violence or damage.
Stalking
Following a person about. Watching or frequenting the vicinity of, or approaching, their home, business, workplace or anywhere they go for social or leisure activities. Contacting or approaching them using the internet or any other technologically assisted means.
What this looks like in practice
- Repeated calls, texts, emails or messages after being asked to stop
- Messaging from new numbers or new accounts after being blocked
- Contacting someone through their friends, family or workplace
- Driving past a home or workplace, or being present where the person will be
- Monitoring someone’s movements or social media, including through tracking apps or shared accounts
- Threats to harm a person, their family, their pet or their property
The court can also have regard to any pattern of violence in your behaviour, particularly violence constituting a domestic violence offence, in deciding whether conduct amounts to stalking. Past conduct is not off the table.
The point most people get wrong
You do not have to have meant to frighten anyone
Intention is deemed where you knew the conduct was likely to cause fear. The offence requires an intention to cause fear of physical or mental harm, but the Act provides that a person has that intention if they knew their conduct was likely to cause fear in the other person. So “I never wanted to scare her, I just wanted to talk” is not the answer people expect it to be, and it is why a great many of these charges succeed against defendants who genuinely did not set out to frighten anyone.
The other person does not have to have actually been afraid. The prosecution does not need to prove fear was caused. It is the conduct and your state of knowledge that matter.
Fear for someone else counts. Causing a person to fear harm to someone they have a domestic relationship with is treated the same as causing them to fear harm to themselves.
What follows from all of that is that the argument is usually not about what you intended. It is about whether the course of conduct is made out, whether you knew fear was likely, and whether the conduct was reasonable in the circumstances.
Coercive control
Since July 2024, a course of abusive behaviour towards a current or former intimate partner, engaged in with the intention of coercing or controlling them, has been a criminal offence in its own right. It carries a maximum of seven years.
It is aimed at patterns rather than incidents, and no single act of physical violence is required. Abusive behaviour can include economic and financial control, isolating a person from family or support, monitoring their movements or communications, and behaviour that intimidates, humiliates or frightens. The prosecution must show that a reasonable person would consider the course of conduct likely to cause fear of violence, or a serious impact on the person’s capacity to go about their ordinary daily activities.
There is a defence where the course of conduct was reasonable in all the circumstances. The offence is new, the boundaries are still being worked out in the courts, and it is not a charge to approach without advice. More on coercive control.
Defences and issues
The conduct does not amount to stalking or intimidation
Frequently the real issue. A handful of messages, or a single visit, is not a course of conduct, and conduct that is unwelcome is not automatically intimidating. The specific acts relied on need to be identified and tested rather than accepted as a narrative.
No knowledge that fear was likely
Given how the intention element works, this is usually where the argument sits: not what you wanted, but what you knew. Context matters, including what had passed between you and how the contact was received at the time.
The conduct was reasonable
Contact for a legitimate purpose, such as arrangements for children, property, or a workplace or legal matter, is a different thing from harassment, though it can be characterised that way after a relationship ends badly.
It was not you
Identification, particularly with anonymous accounts, unattributed numbers or shared devices.
The account is unreliable or incomplete
These matters usually rest on messages and call records. Those records frequently show contact in both directions, and the selection put before the court is not always the whole exchange.
Duress and necessity
Available in the right circumstances, though less common here.
Where a mental health impairment or cognitive impairment is involved and the matter is in the Local Court, it may be able to be dealt with by way of a treatment plan rather than a conviction. That requires properly prepared evidence.
These charges commonly arrive with others, including contravening an AVO, assault, damage to property, and the federal offence of using a carriage service to menace or harass. They should be dealt with together, because the same messages usually answer all of them.
What follows a charge
- An AVO will usually accompany it, often made provisionally by police at the outset, with conditions that can exclude you from a home and restrict contact with children. More on responding to an AVO.
- Firearms. An order means any firearms licence is suspended or revoked and firearms must be surrendered.
- Family law consequences. What is alleged, and what is consented to, feeds directly into parenting proceedings. More on how the two systems interact.
- The record. A domestic violence notation follows the matter, and a conviction affects employment, particularly where a working with children check or a professional registration is involved.
- Employment now. Many employers require disclosure of a charge, not only a conviction.
Sentencing options in NSW
Get advice before pleading guilty to anything. The court can impose any of the following, and a well-prepared sentencing is what produces the best available outcome.
Dismissal without conviction
No conviction recorded and no further penalty. The matter is finalised as you leave court.
Conditional release order
A bond, available with or without a conviction, supervised or unsupervised. The standard conditions are to commit no further offence and to appear if called on, and further conditions can include rehabilitation, abstinence, curfews and non-association or place restriction orders.
Conviction with no other penalty
A conviction is recorded but nothing further is imposed.
Fine
Can be imposed alone or with a bond, and is a conviction. Usually payable within 28 days, though the registry can extend the time or arrange a plan. Non-payment leads to enforcement, which can include licence and registration suspension.
Community correction order
More serious than a conditional release order, for up to three years, supervised or unsupervised, with conditions that can include community service, curfews, abstinence and rehabilitation.
Intensive correction order
A sentence of imprisonment served in the community under strict supervision, which can include home detention, electronic monitoring and curfews. It is not available for some offences. Breaches go to the State Parole Authority rather than the court and often result in serving the balance in custody.
A word on written pleas of guilty. Police sometimes hand you a form allowing you to plead guilty in writing without attending. It looks convenient and it is usually a mistake. On a written plea the magistrate has only the police fact sheet and your record, and knows nothing about you, your circumstances or anything mitigating. The penalty is often heavier as a result. It is also important that you agree with what the fact sheet says before it is tendered, because the court sentences on that document.
Common questions
I never threatened anyone. How is this stalking?
Neither offence requires a threat. Following, watching, turning up, or repeated contact by phone or online can be enough, and the acts can be individually innocuous while the course of conduct is not. What matters is the pattern and what you knew about its likely effect.
I only wanted to talk to her. Doesn’t that mean there was no intent?
Less than people assume. The Act treats you as having intended to cause fear if you knew your conduct was likely to cause it. So the question is not whether you wanted to frighten her, but whether you knew that continuing to contact her was likely to. That is where these cases are usually fought.
She replied to my messages. Doesn’t that show she was not afraid?
It is relevant, and the full exchange is often more helpful than the extract in the brief. But the prosecution does not have to prove that fear was actually caused, so it is not the complete answer it appears to be. Keep the messages rather than deleting them.
What if I was contacting her about the children?
Communication for a genuine purpose is a different thing from harassment, and it is a real argument. It becomes difficult where the contact goes beyond that purpose, or continues after arrangements are settled. If there are parenting proceedings on foot, that context needs to be put properly.
Will I go to gaol?
For a first offence at the lower end, usually not, though these matters are treated seriously, particularly where there is a domestic relationship and where the conduct persisted after a warning or an order. Full-time custody becomes a genuine prospect where there is a pattern, a breach of an order, or previous matters.
Can I avoid a conviction?
It is possible at the lower end, and worth pursuing given the effect on employment and licensing. What decides it is how the matter is prepared: the seriousness of the conduct, your record, and evidence of insight and steps taken since.
Is coercive control the same charge?
No, it is a separate and newer offence with a higher maximum, aimed at a pattern of abusive behaviour between current or former intimate partners. The two can be charged in the same matter. It is a developing area and the way these cases are run is still settling.
What should I bring to the first appointment?
The court attendance notice, the police fact sheet, any AVO or bail conditions, and the full message history rather than an extract, including anything showing contact in both directions. If you have none of it, come anyway.
Get advice before the first mention
These charges are usually won or lost on the detail of the communications and on what the course of conduct actually amounts to, rather than on the narrative in the fact sheet. We act in the criminal charge, the AVO and any family law consequences together.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. Courts we appear in.