Law Information - Assaults / Violence Offences - TAS

Stalking

Date: 09/01/2009

The Law -

Criminal Code Act 1924 – SECT 192

192. Stalking

(1) A person who, with intent to cause another person physical or mental harm or to be apprehensive or fearful, pursues a course of conduct made up of one or more of the following actions:

(a) following the other person or a third person

(b) keeping the other person or a third person under surveillance;

(c) loitering outside the residence or workplace of the other person or a third person;

(d) loitering outside a place that the other person or a third person frequents;

(e) entering or interfering with the property of the other person or a third person;

(f) sending offensive material to the other person or a third person or leaving offensive material where it is likely to be found by, given to or brought to the attention of the other person or a third person;

(g) publishing or transmitting offensive material by electronic or any other means in such a way that the offensive material is likely to be found by, or brought to the attention of, the other person or a third person;

(h) using the internet or any other form of electronic communication in a way that could reasonably be expected to cause the other person to be apprehensive or fearful;

(i) contacting the other person or a third person by postal, telephonic, electronic or any other means of communication;

(j) acting in another way that could reasonably be expected to cause the other person to be apprehensive or fearful –   is guilty of a crime.

(2) For the purposes of subsection (1) –

(a) a person pursues a course of conduct if the conduct is sustained or the conduct occurs on more than one occasion; and

(b) if the conduct occurs on more than one occasion, it is immaterial whether the actions that make up the conduct on one of those occasions are the same as, or different from, the actions that make up the conduct on another of those occasions.

(3) A person who pursues a course of conduct of a kind referred to in subsection (1) and so causes another person physical or mental harm or to be apprehensive or fearful is taken to have the requisite intent under that subsection if at the relevant time the person knew, or ought to have known, that pursuing the course of conduct would, or would be likely to, cause the other person physical or mental harm or to be apprehensive or fearful.

What the prosecution must prove - Stalking

(a) The accused engaged in course of conduct that caused physical or mental harm to the victim or aroused apprehension or fear in the victim for the safety of himself or herself or any other person

(b) The accused's course of conduct must include at least one of the ten acts listed in s 192(1) of the Criminal Code 1924 (Tas)

(c) The accused must have engaged in the course of conduct with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim. Intent will be made out if  the person knew, or ought to have known, that pursuing the course of conduct would, or would be likely to, cause the other person physical or mental harm or to be apprehensive or fearful.

(d) The accused's course of conduct must have aroused such apprehension or fear in the victim.

The Maximum Penalty for Stalking is

The maximum term of imprisonment is 21 years, or fine, or by both such punishments, and will be determined by the judge as he/she thinks fit in the circumstances of each particular case.

If the crime is tried summarily the maximum term of imprisonment that a court of petty sessions may impose is –

(a) 12 months for a first offence; or

(b) 5 years for a second or subsequent offence

Possible Defences - Stalking

(a) Consent.

(b) Factual dispute.

(c) Honest and reasonable mistake of belief.

(d) Lack of intent.

(e) Mental impairment.

The Court process - Stalking

Magistrates Court or Supreme Court, depending upon whether summary jurisdiction is elected