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Stalking in the ACT

It is an offence under s35 of the Crimes Act 1900 to stalk someone with intent –

  1. To cause apprehension, or fear of harm, in the person stalked or someone else; or
  2. To cause harm to the person stalked or someone else; or
  3. To harass the person stalked.

If you are facing charges related to stalking, it’s crucial to seek the guidance of a skilled criminal lawyer.

The ordinary form of this offence carries a maximum penalty of 2 years imprisonment. If it was also committed in a family violence context the maximum penalty is 3 years imprisonment. If the offence involved a contravention of an injunction or court order or possession of an offensive weapon the maximum penalty is 5 years imprisonment. If the offence involved a contravention of an injunction or court order or possession of an offensive weapon AND was in a family violence context, the maximum penalty is 7 years imprisonment.

For your actions to be defined as stalking, you must have done one or more of the following on at least two separate occasions:

  • Followed or approached the stalked person
  • Loitered near, watched, approached or entered a place where the stalked person resides, works, or visits
  • Kept the stalked person under surveillance
  • Interfered with property in possession of the stalked person
  • Given or sent offensive material to the stalked person or left offensive material where it is likely to be found by, given to, or brought to the attention of, the stalked person
  • Telephoned, sent electronic messages to or otherwise contacted the stalked person
  • Sent electronic messages about the stalked person to anybody else
  • Made electronic messages about the stalked person available to anybody else
  • Acted covertly in a way that could reasonably be expected to arouse apprehension or fear in the stalked person
  • Engaged in conduct amounting to intimidation, harassment or molestation of the stalked person

Such conduct can be considered reasonable however if it is engaged in as part of your employment and it is a function of your employment to carry out these activities. In this situation, it is not unlawful.

Furthermore, it must be proved that you intended to stalk the person. This means that you knew, or were reckless about the fact, that stalking the person would cause apprehension or fear of harm in the person stalked or someone else or would harass the person stalked.

What does apprehension or fear of harm mean in relation to stalking? 

Apprehension or fear of harm could include fear of any of the following, regardless if they are permanent or temporary –

  • Physical harm
    • Unconsciousness
    • Pain
    • Disfigurement
    • Physical contact that might be reasonably objected to
  • Mental harm
    • Psychological harm
  • Disease

It is important to note that it is not necessary to prove that you harassed the stalked person or that the stalked person or someone else apprehended or feared harm.

Should I plead guilty or not guilty to stalking in the ACT? 

Whether to plead guilty or not guilty to stalking in the ACT depends on the specifics of your case. It’s essential to consult with a qualified criminal defence lawyer who can assess the evidence against you and advise you on the best course of action. If you believe you are innocent or have valid defences, pleading not guilty may be appropriate. However, if the evidence against you is overwhelming or if there are opportunities to negotiate a plea deal for a lesser charge, pleading guilty may be advisable.

Contravene Family Violence Order in the ACT

  1. Contravention of a family violence order (FVO) is an offence under section 43 of the Family Violence Act 2016 (ACT).
  2. The maximum penalty for contravention of an FVO is imprisonment for 5 years, and or a fine of $80,000.00.
  3. If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is possible that you may be sentenced to a term of imprisonment.

If you have been charged with contravention of an FVO, the prosecution must prove that:

  1. A family violence order was served upon you in accordance with the Act or you were present in court when the order was made.
  2. You intentionally or recklessly engaged in conduct that contravened the family violence order (including any conditions of the order) in or outside of the ACT.

What defences to this charge might be available?

If you are charged with contravening a condition of a family violence order (FVO), several defences might be available:

  • Lack of Service or Presence: You were not served with a copy of the order or present in court when the order was made.
  • No Contravention: The conduct in question did not actually contravene a condition of the FVO.
  • Duress: You were under duress when you committed the act that contravened the FVO.
  • Accident: You accidentally committed the act that contravened the FVO.
  • Mistake of Fact: There may have been an honest and reasonable mistake of fact.
  • Lack of Intent or Recklessness: You had not intentionally or recklessly contravened the order.

Facing charges for contravening an FVO can have serious legal consequences. Our criminal defence service can provide you with the necessary expertise to explore and present these defences effectively.

Should I plead guilty or not guilty to contravening a family violence order?

Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept you were validly served with the order and contravened it.

You may accept that you committed the offence, but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the facts for sentencing.

Q. Will I go to gaol and will this appear on my criminal record?

Having an FVO taken out on you is not a criminal offence and you will not go to gaol or have the order recorded on your criminal record. However, if you are found guilty of contravening the conditions of the FVO this will likely result in a criminal conviction being imposed and you may face gaol-time as part of your penalty.

If you are facing charges for contravening an FVO, it is crucial to seek expert legal assistance.

Q. Who can take out an FVO?

Under section 9 of the Family Violence Act 2016 (ACT), a family violence order can be ordered against a family member. This includes:

  • Domestic and former domestic partners (domestic partners do not need to be adults)
  • Intimate and former intimate partners (someone you have an intimate relationship with that is not a domestic partner and is not in a relationship because a service is being provided)
  • Relatives
  • Children of domestic and former domestic partners
  • A parent of the person’s child

Q. What conduct constitutes contravention of an FVO?

To constitute an offence under section 43 of the Act you must have acted in a way that contravened the FVO. There are conditions laid out in an FVO that stipulate actions that cannot be undertaken in order to protect the applicant.

Further advice:

This blog is intended to provide general information about matters that often come before the court and is not legal advice. For legal advice about this offence or any other criminal offence, please reach out to us and speak to one of our lawyers on (02) 9696 1361 (Sydney) or (02) 5104 9640 (Canberra) or by email at info@hugolawgroup.com.au

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Hugo Law Group is a law firm that is focused on protecting and defending your rights. Drawing on decades of experience, our team of criminal lawyers will guide you through the legal process, providing comprehensive, honest and strategic advice – qualities that give us our renowned reputation.

Whether you want to plead not guilty, you are looking to secure the best possible sentence, or a loved one wants to apply for bail, it is essential to have an experienced team of criminal defence lawyers in your corner.

Seeking comprehensive and practical advice at an early stage will best ensure your rights and interests are protected. Our lawyers will properly prepare and present your case to assist you in getting the best possible outcome.

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At Hugo Law Group, we will clearly explain what your rights and obligations are so that you can make informed decisions about how to deal with the police and the court process.

Even if you have not yet been charged with a criminal offence, you should seek advice from a lawyer at an early stage to ensure that your rights and interests are protected.

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Get in contact with us today or feel free to call us at 02 9696 1361 (Sydney), 02 5104 9640 (Canberra), 08 6255 6909 (Perth), or 07 5552 1902 (Northern NSW) and find out how we can help you.