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Unlawful Stalking


John Sutton

Unlawful Stalking is a serious offence under Queensland law punishable, in some circumstances, by up to 10 years imprisonment. The punishments for unlawful stalking are set out in section 359E of the Queensland Criminal Code which provides for three different maximum penalties.

If the crime is committed, simpliciter, it is punishable by up to 5 years imprisonment. If it is committed with actual or threatened violence, while armed with a weapon, or in contravention of a court order (for example a domestic violence order) it is punishable by up to 7 years imprisonment. If it is committed by a person who is a member of a criminal organisation it is punishable by up to 10 years imprisonment.


THE OFFENCE OF STALKING

Unlawful stalking is defined in section 359B of the Queensland Criminal Code which says:

Unlawful stalking is conduct

  • Intentionally directed at a person (the stalked person); and
  • Engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and
  • Consisting of 1 or more acts of the following, or a similar, type
    • following, loitering near, watching or approaching a person;
    • contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology;
    • loitering near, watching, approaching or entering a place where a person lives, works or visits;
    • leaving offensive material where it will be found by, given to or brought to the attention of, a person;
    • giving offensive material to a person, directly or indirectly;
    • an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;
    • an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and
  • 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.

WHAT THE POLICE MUST PROVE

In order to convict you of unlawful stalking it must be proved that you:

  • Intentionally engaged in any of the conduct described in section 359B(c), and
  • Your conduct was deliberately directed at a person, and
  • Your conduct would cause that person apprehension or fear of violence to or against them, or someone else, or
  • Your conduct caused detriment to that person.

It is important to note that it does not need to be proved that you intended to cause the apprehension or fear of violence, or detriment, mentioned above. It also does not need to be proved that the apprehension or fear of violence, or detriment, was actually suffered by the stalked person. All that needs to be proved is that the apprehension or fear of violence, or detriment, would have been caused on a reasonable view of your conduct.

POSSIBLE DEFENCES TO UNLAWFUL STALKING

In addition to the ‘ordinary defences’ which apply to most criminal matters, namely that you were not the person who committed the offence or you did not engage in the conduct which gave rise to the offence, it is also a defence to a charge of unlawful stalking if you did not intend for your conduct to be directed toward a particular person.

That you didn’t intend for the stalked person to be aware of your conduct (which was directed at them) is not a defence to a charge of unlawful stalking so care must be taken when considering whether or not to contest the charge.

WHICH COURT WILL HEAR YOUR MATTER?

The least serious cases of unlawful stalking will be heard in a Magistrates Court. The two more serious kinds must be heard and determined in the District Court.


Types of penalties:

Imprisonment : Even though it is not a sentence of last resort (as it is in some other states) imprisonment is the most serious penalty which a court can impose upon a person. At its most severe a sentence of imprisonment means that a person must spend a specified period of time within a correctional facility, also called a prison, a jail or a gaol. Read more.

Intensive corrections order (ICO): An Intensive Corrections Order ('ICO' for short) is, technically, a form of imprisonment but which is served wholly in the community. This means that a person who is made subject to an ICO will not spend any time in prison but will, instead, be required to adhere to a number of requirements that the court will order. Read more.

Probation: A court can make a Probation Order either by itself, meaning the whole of the sentence is probation, or as a component of a sentence of imprisonment, meaning that a person is ordered to serve a period of time (not longer than 1 year) in prison and is then subject to a probation requirement upon release. Read more.

Community service order(CSO): As the name implies, a Community Service Order (‘CSO’ for short) is an order which requires a person to perform unpaid work, normally at some kind of community facility, for a stated number of hours (to a maximum of 240) within a nominated time (usually 6 or 12 months). Read More.

Recognisance: A recognisance is a promise which a person makes to be of good behaviour for a stated period of time. A court is empowered to release a person who enters into a recognisance, either with a surety, which is a sum of money which the person agrees to pay if they breach the recognisance, or without one. Read More.

Fines: A court is empowered to impose a fine, which is a sum of money which a person is required to pay to the State, for any offence regardless of whether the law creating it nominates a fine as part of the applicable penalty. Read More.

Section 19 dismissal: A court can discharge a person absolutely, or upon them entering into a recognisance, without recording a conviction against them, if it is satisfied that it is appropriate to do so. Read More.

In all cases where you are sentenced to a penalty other than jail, the Court can choose not to record a conviction against you, meaning your criminal record will remain clear and any complications with work or travel may be avoided.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers will be able to guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Brisbane: (07) 3229 4448
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Canberra: (02) 6288 1100
Perth: (08) 9321 5505