Stalking, Intimidation, Harassment and Abuse
Unlawful stalking, intimidation, harassment and abuse is a serious offence under Queensland law. The offence is set out in section 359E of the Criminal Code Act 1899 which provides for three different maximum penalties depending on the circumstances of the offence. In the most serious cases, the offence is punishable by 10 years imprisonment.
Changes to the law on stalking
Prior to 2023, the offence contained in section 359E of the Crimes Act was known only as ‘unlawful stalking’. The offence was renamed ‘stalking, intimidation, harassment and abuse’ in order to better recognise the nature of the offence and the role it plays in situations of family violence.
Penalties for the offence
Section 359E of the Criminal Code 1899 contains the penalties for stalking, intimidation, harassment and abuse.
If the offence is committed in its simple form, it is punishable by a maximum of five years imprisonment.
If the offence involves actual or threatened violence, the possession of a weapon, or in contravention of a court order (for example a domestic violence order) it attracts a maximum penalty of seven years imprisonment.
If the offence is committed against a law enforcement officer because they are investigating the activities of a criminal organisation, the maximum penalty that applies is 10 years imprisonment.
The Offence Of Stalking, Intimidation, Harassment and Abuse
Unlawful stalking, intimidation, harassment and abuse is defined in section 359B of the Criminal Code Act 1899 which says that the offence is conduct that is:
- intentionally directed at a person (the stalked person); and
- engaged in on any one occasion if the conduct is protracted or on more than 1 occasion; and
- consisting of one or more acts of the following, or a similar, type:
- following, loitering near, watching or approaching a person;
- contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology;
- loitering near, watching, approaching or entering a place where a person lives, works or visits;
- leaving offensive material where it will be found by, given to or brought to the attention of, a person;
- giving offensive material to a person, directly or indirectly;
- an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;
- an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and that
- would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or
- causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.
What must be proven
In order for a court to find a person guilty of unlawful stalking it must be proved that the accused:
- intentionally engaged in any of the conduct described in section 359B(c); and
- the conduct was deliberately directed at a person; and
- the conduct would cause that person apprehension or fear of violence to or against them, or someone else; or
- the conduct caused detriment to that person.
It is important to note that it does not need to be proved that the accused intended to cause the apprehension or fear of violence, or detriment, mentioned above. It also does not need to be proved that apprehension or fear of violence or detriment was actually suffered. All that needs to be proved is that the apprehension or fear of violence, or detriment, would have been caused on a reasonable view of the conduct.
Conduct that is not unlawful stalking
While the definition of this offence is quite broad, there are a number of activities which do not amount to an offence. Under section 359D of the Criminal Code, conduct does not amount to stalking, intimidation, harassment and abuse if it occurs in the context of the execution of the law, in a genuine industrial dispute, in the context of a person’s lawful trade, business or occupation, for the purpose of a genuine public dispute, or for the purpose of obtaining or giving out legitimate information.
Simple offences may be heard in the Magistrates Court.
Aggravated offences of stalking, intimidation, harassment and abuse can only be heard and determined in the District Court.
Domestic violence record
When a court is dealing with a family violence matter, the Queensland Police are required to provide the court with a criminal history and domestic violence history of the accused to help the court to decide whether it needs to make a domestic violence order.
This means that if a person is being tried or sentenced for a stalking offence that occurred or is alleged to have occurred in a family violence context, the court may decide to make a domestic violence protection order against them even where there is no DVO application before the court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.