Stalking or Intimidation with Intent to Cause Dear of Physical or Mental Harm Domestic Violence Related
Stalking & Intimidation: Domestic Violence Offences Explained
The offence of Stalking or Intimidation with Intent to Cause Fear of Physical or Mental Harm Domestic Violence Related is defined under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Key Points:
- Zero-tolerance approach by government and courts
- Severe penalties for domestic violence offences
- Expert advice from professional domestic violence criminal defence lawyers to protect your rights
The national government and public opinion have adopted a zero-tolerance attitude and demand for domestic violence in recent years, which has led the courts to severely punish domestic violence cases. Therefore, our professional domestic violence criminal defence lawyers will give you the best legal advice.
Under section 13(1)
"A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence."
Key Elements of the Offence
To prove the offence, the prosecution must establish beyond reasonable doubt that:
- The accused stalked or intimidated another person;
- The accused intended to cause the other person to fear physical or mental harm;
- The conduct was domestic violence related, meaning it occurred in the context of a domestic relationship as defined in section 5 of the Act.
Definitions
“Stalk” (s 7) includes:
- Following a person,
- Watching or frequenting a person’s residence, work, or place they frequent,
- Contacting or approaching someone by any means (including electronically),
- Conduct that amounts to a pattern of behaviour causing fear or distress.
“Intimidate” (s 7(1)) includes:
- Conduct that harasses or molests,
- Approaching someone in a threatening way,
- Conduct causing the person to fear injury, violence, or damage,
- Repeated telephone, text, or online communication.
“Fear” of harm includes both:
- Physical harm; and
- Mental harm (which may include serious psychological effects).
In a Domestic Violence Context
The offence becomes “domestic violence related” when the conduct occurs in the context of a domestic relationship (as per section 5), such as:
- Spouse or partner (current or former),
- Family members,
- Housemates or carers,
- Intimate or dependent relationships.
The maximum penalty is:
- Up to 5 years' imprisonment,
- 50 penalty units,
- Or both.
The Australian legal system has adopted a zero-tolerance stance on domestic violence, leading courts to impose severe penalties. Seeking expert legal representation is crucial in these cases.
Elements the Prosecution Must Prove
To secure a conviction under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the prosecution must prove each of the following elements beyond reasonable doubt:
Stalking or Intimidation
That the accused engaged in either:
- Stalking: includes following, watching, or contacting a person persistently or intrusively (see s 7); or
- Intimidation: includes harassing, threatening, or causing the person to fear injury, violence, or damage (also defined in s 7).
- Harassing or distressing behaviour
- Contacting the victim (e.g., phone, text, email) in a way that causes fear
- Creating a reasonable apprehension of harm to the victim or someone in a domestic relationship with them
Intent to Cause Fear of Harm
That the accused intended their conduct to cause the victim to fear physical or mental harm.
- The intent must be deliberate, but the actual experience of fear by the victim is not required — only that the accused intended to cause it.
- It is important to note that the prosecution does not need to prove whether the other person actually fears being harmed. The attempt to engage in the conduct has a sufficient basis to establish the offence.
Possible Defences
Several legal defences may be available, depending on the circumstances:
- Lack of Intent
The accused did not intend to cause fear of physical or mental harm. (E.g., behaviour was misinterpreted, or coincidental presence was not deliberate stalking.)
- Reasonable Conduct
The accused’s conduct was reasonable in the circumstances. (E.g., legitimate attempts to retrieve property, or contact related to shared children.)
- No Stalking or Intimidation
The alleged conduct does not meet the legal threshold for stalking or intimidation. Must be more than mere annoyance, inconvenience, or isolated incidents.
- Mistaken Identity
The accused was not the person involved in the alleged conduct.
- Consent or Mutual Engagement
While not a full defence, mutual contact or engagement may undermine claims of intimidation.
- Duress or Necessity
The accused acted under threat of harm or out of necessity to avoid greater harm.
- Mental Illness Defence
Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), if the accused was mentally ill at the time, this may lead to a finding of mental impairment.
Potential Penalties
Depending on the severity of the case, possible penalties include:
- Conditional release order
- Fines
- Community Correction Order (CCO)
- Intensive Correction Order (ICO)
- Custodial sentence
Penalties vary based on case circumstances, prior convictions, and mitigating factors.
Legal Process
& Options
The legal process for stalking or intimidation domestic violence offences involves investigation, police charges, and court hearings, where your case is assessed and evidence is examined. Expert criminal defence lawyers guide clients through each step, advising on pleading options, defences, and potential outcomes.
Pleading
Not Guilty
If you choose to plead not guilty, Brightstone Defence will build a strong defence based on:
- Lack of intent to cause fear or harm
- Misidentification or false accusations
- Insufficient evidence from the prosecution
- Lawful excuse for your actions
Our legal team will review police evidence, cross-examine witnesses, and present a defence strategy to achieve the best possible outcome.
Pleading
Guilty
If the evidence against you is strong and a conviction is likely, pleading guilty early may result in a more lenient sentence. Benefits of an early guilty plea include:
- Reduced penalties
- Potential for a Section 10 dismissal (no conviction recorded)
- Consideration of mitigating factors
Before entering a plea, consult Brightstone Legal to understand the legal consequences and explore the best course of action.
Yes, coercive control is about psychological and emotional abuse, not physical violence.
You can be charged even if there is no physical injury.
- Yes.
A conviction for coercive control results in a criminal record, which may affect your employment, travel and visas, child custody matters and your reputation. Coercive control is a serious charge, making it essential to seek legal advice when proceeding with your matter.
It depends. If there is an ADVO in place with a condition that you do not approach or contact the person in need of protection, you must not contact the protected person, even if they contact you first. If you breach your ADVO you will be charged with a separate criminal offence.
If you are charged, under investigation or unsure about your situation, it is essential to contact Brightstone Defence as soon as possible to ensure your rights are protected and to obtain professional advice tailored to your case.
- Yes.
If the choking is non-consensual and done intentionally, it is viewed as an escalation for violence and is a standalone criminal offence even if no injury has occurred.
- No.
Only the police and prosecution can decide whether a charge proceeds, even if the alleged victim wants to withdraw the charge.
Yes. Choking is a separate and more serious offence, even if no visible injury occurs.
It has its own section in the Crimes Act 1900 (NSW) and is viewed as high-risk conduct in domestic settings.
Yes. Imprisonment is a real possibility, especially if:
- You have prior domestic violence convictions
- The choking was prolonged or violent
- Children were present
- The court believes that there is a risk of harm in the future
Yes. If convicted, this offence will be on your criminal record, which can affect employment, visas, travel, and your reputation. It is crucial to obtain expert legal advice to know your options.
If you have been charged or are under investigation for choking, suffocation or strangulation, it is essential to contact Brightstone Defence immediately to understand your rights and obtain professional representation.
An offence is classed as domestic violence related if it involves a person that is or has been in a domestic relationship with the accused. This could be:
- A partner or an ex-partner
- Family member
- Housemate
- Someone you care for, or that cares for you
In these cases, the police will most likely apply for an ADVO as well.
Depending on your circumstances, the court will consider:
- The seriousness of the injury
- Your criminal history
- Whether you plead guilty early
- If you have taken any steps to rehabilitation, such as anger management or counselling
- Whether you have shown remorse for your actions
The most probable outcomes include non-custodial sentences, such as good behaviour bonds, fines or community correction orders. However, gaol is a real possibility dependent on your specific circumstances, especially for repeat or violent offenders.
- No.
In NSW, the police and prosecution decide whether charges proceed, not the victim. Even if the alleged victim wants to ‘drop the charges’, only the courts can remove the order or if the prosecution believes there is not enough evidence to prosecute you.
Yes. If you are convicted, you will likely receive a criminal record. This will affect your:
- Employment and licencing
- Working with children’s clearances
- Overseas travel
- Family law matters
However, in certain circumstances your lawyer may argue for a non-conviction outcome, such as a section 10 dismissal or a conditional release order (CRO) without conviction.
It is important that you seek professional legal advice prior to making decisions about your case. Domestic Violence charges are taken seriously in NSW and can result in significant penalties if not dealt with properly. Brightstone Defence is here to help you.
Yes. Absolutely, it is recommended that you seek legal representation. AOABH is a serious charge with serious consequences. Your lawyer will:
- Explain your rights and options thoroughly
- Challenge the evidence
- Negotiate with police and prosecutors
- Represent you in court
- Help you in obtaining the best possible outcome
It is a criminal offence to intentionally or recklessly destroy or damage someone else’s property without lawful excuse. This can include:
- Breaking furniture, windows, or electronics
- Damaging a phone to prevent a call for help
- Keying a car or smashing belongings during an argument
It is domestic violence related if the accused and victim are in a domestic relationship, such as:
- Current or former partners
- Family members
- Housemates
- Co-parents
Even if the property is jointly owned or belongs to the offender, the offence can still be DV-related if it is part of an act of control, fear, or abuse.
It can be if the property is shared, jointly owned, or intended for someone else’s use. For example:
- Smashing a shared phone or TV
- Burning belongings during a breakup
- Damaging property to intimidate or punish a partner
- Smashing a partner’s phone to prevent them calling for help
- Punching holes in walls during arguments
- Breaking or throwing household items
- Damaging a vehicle or pet’s belongings to cause fear or retaliation
- No. Even temporary or minor damage can be enough, for example:
- Spilling paint on someone’s clothing
- Scratching a surface
- Cutting up clothes or photos
The key is that some damage was caused, and it was not accidental.
- Yes. In domestic violence matters, police often must proceed with charges once they believe a crime has occurred, even without the victim’s cooperation.
No. It can involve:
- Threatening gestures
- Raising a fist
- Verbal threats that cause genuine fear of immediate violence
Physical contact (like slapping or grabbing) can also count as common assault if it does not result in grievous bodily harm.
Yes. A single act of:
- Hitting
- Pushing
- Threatening to harm
…can be charged as common assault, particularly in a domestic violence context.
Yes. In domestic violence cases, police can and often must lay charges even if the victim:
- Does not want to proceed
- Changes their statement
- Fails to attend court
This ensures protection for victims from pressure, fear, or coercion.
Yes. If convicted, a person may receive:
- A criminal conviction
- Fines, community corrections orders, or jail (in serious cases)
A conviction can affect employment, travel, and future legal matters.
Victims of domestic violence can access:
- 1800 RESPECT (24/7 national helpline)
- NSW Victims Services
- Legal Aid, domestic violence liaison officers, and court support services
- Safe housing, counselling, financial assistance
Reckless means the offender:
- Knew or should have known their actions could cause serious injury, but
- Went ahead anyway without regard for the consequences.
- Intentional GBH: The offender meant to cause serious injury.
- Reckless GBH: The offender didn’t intend the injury but knew it could happen and took the risk.
Intentional offences generally carry heavier penalties.
- Yes. If they acted recklessly (e.g., hitting someone with a weapon or during a violent outburst) and serious injury occurred, they can be charged even if they didn’t intend that level of harm.
- No. Once police lay charges, only the police or prosecution can withdraw them. The victim’s views may be considered but they cannot unilaterally drop charges.
A history of domestic violence can:
- Make bail harder to get
- Lead to harsher sentencing
- Justify a long-term ADVO
- Be considered an aggravating factor under sentencing laws
- Yes. Police can apply for an Apprehended Domestic Violence Order (ADVO) on the victim’s behalf, sometimes even without their request. It can:
- Prohibit the offender from contacting or approaching the victim
- Impose strict conditions on behaviour
- Be made interim (temporary) or final depending on the situation
Examples include:
- Threats of violence
- Harassment via social media or messages
- Property damage
- Surveillance or repeated unwanted presence
- Yes. The law covers current and former partners, family members, or any person in a domestic relationship with the victim.
- Yes. Police often apply for a provisional AVO to protect the victim immediately. If the matter goes to court, the AVO can be made final.
- Call 000 if in immediate danger.
- Report to local police.
- Keep a record of incidents (messages, photos, notes).
- Seek support from a domestic violence service, such as 1800RESPECT, White Ribbon Australia, or Mission Australia.
“Domestic relationship” includes:
- Spouses or de facto partners (current or former)
- People who live together
- Relatives (including by marriage)
- People in a care relationship
- Individuals with a shared parenting relationship (even if no longer together)
- Stalking: Involves following, surveilling, or contacting someone repeatedly in a way that causes fear.
- Intimidation: Broader — includes threats, harassment, or any conduct that makes someone fear for their safety or wellbeing.
Both are criminal offences under the same provision when done with intent to cause fear.
- Our experienced domestic violence criminal defence lawyers can provide immediate advice, assess your case, and guide you on the best legal strategy to protect your rights and achieve the best possible outcome.
- A Criminal lawyer can help you by:
- Explaining your rights and the legal process.
- Assessing whether you have valid defence.
- Negotiating with prosecutors to reduce charges or penalties.
- Preparing your case for court and advocating on your behalf.
- Helping minimise the impact on your future, such as avoiding a criminal record.
- Early legal advice can significantly improve your chances of a favourable outcome.
Examples include:
- Threats of violence
- Harassment via social media or messages
- Property damage
- Surveillance or repeated unwanted presence
- Yes. The law covers current and former partners, family members, or any person in a domestic relationship with the victim.
- Yes. Police often apply for a provisional AVO to protect the victim immediately. If the matter goes to court, the AVO can be made final.
- Call 000 if in immediate danger.
- Report to local police.
- Keep a record of incidents (messages, photos, notes).
- Seek support from a domestic violence service, such as 1800RESPECT, White Ribbon Australia, or Mission Australia.
“Domestic relationship” includes:
- Spouses or de facto partners (current or former)
- People who live together
- Relatives (including by marriage)
- People in a care relationship
- Individuals with a shared parenting relationship (even if no longer together)
- Stalking: Involves following, surveilling, or contacting someone repeatedly in a way that causes fear.
- Intimidation: Broader — includes threats, harassment, or any conduct that makes someone fear for their safety or wellbeing.
Both are criminal offences under the same provision when done with intent to cause fear.
- Our experienced domestic violence criminal defence lawyers can provide immediate advice, assess your case, and guide you on the best legal strategy to protect your rights and achieve the best possible outcome.
- A Criminal lawyer can help you by:
- Explaining your rights and the legal process.
- Assessing whether you have valid defence.
- Negotiating with prosecutors to reduce charges or penalties.
- Preparing your case for court and advocating on your behalf.
- Helping minimise the impact on your future, such as avoiding a criminal record.
- Early legal advice can significantly improve your chances of a favourable outcome.
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