The Offence of Stalking or Intimidation in NSW

It has been reported that 30-year old, retiring South Sydney Rabbitohs NRL star Sam Burgess has been charged with stalking or intimidation with intent to cause fear of physical or mental harm over an incident at around 4pm on Saturday, 19 October 2019 whereby he is alleged to have intimidated a his 63-year old father-in-law.

According to a police statement,

“About 4pm on Saturday 19 October 2019, police were called to an address at Glenquarry, east of Bowral, in relation to a domestic dispute,” police said in a statement.

“Police from The Hume Police District attended and an Apprehended Domestic Violence Order was applied for on behalf of a 63-year-old man.

“Following further inquiries, on Wednesday 30 October 2019, a 30-year-old man was charged with the offence of Intimidation (DV related).

“It’s alleged the man intimidated the older man during the incident.”

Mr Burgess’ matter is listed for a mention in Moss Vale Local Court on 18 December 2019.

The offence of stalking or intimidation

Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 prescribes a maximum penalty of 5 years in prison and/or a fine of $5,500 for any person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm.

For the purposes of the section:

• causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship,
• a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person,
• the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm, and
• an attempt to commit the offence is enough to establish the offence.

‘Intimidation’ is defined by section 7 of the Act as:

• conduct (including cyberbullying) amounting to harassment or molestation of the person,
• an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or
• any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

The court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour when determining whether conduct amounts to intimidation.

‘Stalking’ is defined by section 8 of the Act as including:

• the following of a person about,
• the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity, and
• contacting or otherwise approaching a person using the internet or any other technologically assisted means.

Again, the court can consider any pattern of violence when determining whether conduct amounts to stalking.

A person with who there is a ‘domestic relationship’ is someone who:

• is or has been married to the other person,
• is or has been a de facto partner of that other person,
• has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature,
• is living or has lived in the same household as the other person,
• is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre or detention centre),
• has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person,
• is or has been a relative of the other person, or
• in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture.

Defences to the charge include:

• Self-defence,
• Duress, and
• Necessity.

Going to court for stalking or intimidation?

If you are going to court for stalking or intimidation, call Sydney Criminal Lawyers anytime on 9261 8881 to arrange a free first consultation with an experienced criminal defence lawyer who will advise you of your options, the best way forward and fight to achieve the optimal outcome in the circumstances.