Have You Been Charged with Unlawful Stalking in QLD?
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.
Do not hesitate to contact Michael McMillan on (07) 5619 6860 or 0409 273 430 for legal advice & representation in court.
What is the Offence of Stalking?
Under Section 359B of the Criminal Code 1899, stalking refers to intentional conduct directed at an individual that causes fear of violence or results in other detrimental consequences.
While a single act may qualify as stalking, the offence usually involves multiple acts forming a pattern of behaviour.
Changes in Queensland Law
The 2023 amendments to Queensland’s domestic violence laws underscore a significant shift. What was previously known as “unlawful stalking” is now classified as “stalking, intimidation, harassment, and abuse.”
This change was made to better capture the nature of such offences, particularly when they occur in the context of family violence.
Activities That May Instigate Stalking Charges
Here are some examples of conduct that may constitute unlawful stalking including:
- Following, loitering near, or approaching the individual.
- Monitoring or surveilling movements or personal activities without consent, including using electronic tracking devices.
- Sending messages through phone, email, or social media platforms.
- Entering places the person frequents (home, work, or other locations).
- Publishing or leaving offensive materials intended to distress the victim.
- Engaging in intimidating, harassing, or threatening actions against the person or their property.
- Threats or actual acts of violence.
These behaviours, particularly in domestic situations, reflect coercive control that can erode a victim’s sense of safety.
The Court treats these offences as serious matters, often applying stern punishments to deter offenders and protect the community.
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.
Penalties and Sentencing
Under Section 359E of the Criminal Code 1899, penalties for stalking vary depending on aggravating factors:
- 5 years imprisonment for the base offence.
- 7 years imprisonment if violence, weapon possession, or a breach of a court order (such as a Domestic Violence Order) is involved.
- 10 years imprisonment if the offence is committed against a law enforcement officer investigating organised crime.
Courts in Queensland have adopted a strict approach in response to the increasing prevalence of stalking-related offences, especially within domestic relationships. However, sentencing can consider the offender’s circumstances.
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.
Case Example – The Queen v Shane Andrew Martin
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.
Defences for a Stalking Charge
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.
To secure a conviction, the prosecution must prove that the behaviour was:
- Intentionally directed at the complainant.
- Conduct that would reasonably cause fear of violence or detriment.
- Carried out on one or more occasions to form a pattern of stalking behaviour.
A strong defence often hinges on disputing the intent or the context of the conduct.
Case Example
For example, Michael McMillan was recently involved in defending another stalking charge from Rockhampton where a serious allegation of stalking relies on text communications exchanged between his client and their ex-partner, allegedly accusing the client of breaching 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.
Police and Court Procedures
The jurisdiction for Queensland stalking offences depends on the seriousness of the conduct:
- Simple offences are heard in the Magistrates Court.
- Aggravated offences—those involving violence or repeated breaches—are dealt with in the District Court.
In cases involving domestic violence, police must provide the court with the accused’s criminal and domestic violence history. This helps the court assess whether additional protective measures, such as Domestic Violence Orders, are necessary.
Get Expert Legal Representation
The offence of stalking, intimidation, harassment, and abuse is treated seriously under Queensland law, reflecting the growing awareness of its impact on personal safety and community well-being. With clear legal definitions and escalating penalties, courts aim to deter such behaviour and offer protection to victims. However, effective defence strategies provided by an expert criminal lawyer—based on the intent and context of the conduct—can influence sentencing outcomes.
Whether you are facing a stalking charge or seeking legal protection from an offender, prompt legal advice is essential. A well-prepared case can ensure that your rights are protected.
Contact Michael McMillan – Expert Criminal Defence Lawyer
If you require any assistance at all with a stalking charge, please do not hesitate to contact Michael on (07) 5619 6860 or 0409 273 430.