Unlawful Stalking

Unlawful stalking

Unlawful stalking including intimidation, harassment, threat of violence, and abuse are serious offences under Queensland law. These offences are outlined in Section 359E of the Criminal Code Act 1899, which specifies three different maximum penalties based on the circumstances of the offence. In the most serious cases, the offence can result in a maximum penalty of 10 years imprisonment.

If you are facing charges of unlawful stalking, it is crucial to seek expert legal advice due to the serious and complex nature of this legal matter.

 

What is the Offence of Stalking?

Under Section 359B of the Criminal Code 1899, a person commits the offence of unlawful stalking if they engage in conduct that is intentionally directed at another person, causing them to fear violence or suffer a detriment. This conduct may involve one or more of the following actions:

  • Following, loitering near, watching, or approaching the person.
  • Contacting the person.
  • Watching, approaching, or entering a place where the person lives, works, or visits.
  • Monitoring, surveilling, or tracking the person without their consent.
  • Leaving offensive material where it will be found by the person.
  • Publishing offensive material in a way that will be found or brought to the person’s attention.
  • Giving offensive material to the person.
  • Engaging in intimidating, harassing, threatening, or abusive acts.
  • Committing an act or making a threat of violence.

It also includes threats or acts of actual violence towards another person. While a single act can constitute stalking, the offence typically involves multiple acts.

 

Activities that Do Not Constitute Unlawful Stalking

While the definition of unlawful stalking is broad, several activities do not constitute an offence. Under Section 359D of the Criminal Code, the following conduct is not considered stalking, intimidation, harassment, or abuse:

  • Acts performed in the execution of a law or the administration of an Act, or for a purpose authorized by an Act.
  • Acts carried out for the purposes of a genuine industrial dispute.
  • Acts undertaken for the purposes of a genuine political or other public dispute or issue carried out in the public interest.
  • Reasonable conduct engaged in by a person for their lawful trade, business, or occupation.
  • Reasonable conduct engaged in by a person to obtain or provide information that they have a legitimate interest in obtaining or providing.

 

Sentence

According to the Queensland Sentencing Advisory Council with the increase in domestic violence matters in Queensland has come an increase in stalking charges. And according to the New South Wales Bureau of Crime Statistics and Research the results in that State are the same.

Naturally, this trend has seen courts react by imposing more stern punishments for this type of conduct. There are ways, though, to reduce the likelihood of actual imprisonment when the client’s case is very carefully considered.

I recall a case known as The Queen v Shane Andrew Martin, (unreported decision of Judge Lynch QC, delivered in Ipswich District Court on 20 July 2020), where my client was charged with unlawful stalking with violence and thus faced a real prospect of receiving a period of actual imprisonment. But, after some careful psychometric evaluation, it became clear that the cause of his offending was treatable, and as such evidence of that was placed before the sentencing court. Given that rehabilitation is a very important method of ensuring community protection in matters like this, that evidence encouraged the court to abstain from immediately incarcerating my client.

 

Defence

The charge of unlawful stalking requires there to be contact of a prescribed kind, and that contact must cause the person apprehension or fear of violence. So, in considering whether a defence exists a very careful examination of the context of the contact must occur.

For example, I am currently involved in another stalking charge from Rockhampton where a serious allegation of stalking relies on text communications exchanged between my client and his ex-partner allegedly in breach of a Domestic Violence order.

Careful examination of those exchanges reveals them to be related to contact between each of them and the child of the relationship, and despite the texts being quite heated, neither party appears to be fearful of the other as a result of the texts. That fact will be the platform of my client’s intended defence: namely, that he could not be said to have stalked his ex-partner with these numerous texts because she did not (and no reasonable person would) develop a fear of him as a result.

This is just a small snippet of the law that relates to sentencing and defending stalking charges. There is a great deal more that I could go into. If you require any assistance at all with a stalking charge, please do not hesitate to contact me on (07) 5619 6860 or 0409 273 430.