跟踪或恐吓意图导致害怕身体或精神伤害家庭暴力相关

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:

1. The accused stalked or intimidated another person;
2. The accused intended to cause the other person to fear physical or mental harm;
3. 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.

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:

1. 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

2. 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.

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.

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.