Stalking Offences and Penalties in Queensland (QLD)

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Stalking offences range from mild to severe, depending on the severity of the crime. Stalking that includes acts of violence, for example, is punished far more harshly than where it involves no violence. Stalking has a variety of consequences, from small fines to jail time for severe offenders.

According to section 359 of the Criminal Code Act 1899 (Qld), stalking is a grave criminal offence. It covers a wide variety of actions, such as keeping an eye on, pursuing, or approaching someone, making any unwelcome physical contact with them, or lingering in any form. Depending on the situation, the offence might be one or several actions.

If you are convicted of a Stalking offence in a Queensland based court, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check.

Unlawful Stalking

In some instances, stalking may be a precursor to eventual domestic violence.

Stalking is when someone deliberately focuses their attention on another individual. On the other hand, the stalked finds the stalker's attention obnoxious, unwelcome, or even destructive or dangerous.

Chasing, loitering, observing, contacting, or sending materials to another person that causes them to be afraid or harm them or any other third party are all examples of stalking behaviours that may be punished by law in Queensland.

If you or a loved one has seen the following unwelcome behaviours from another person regularly, you may have grounds for launching a stalking complaint:

• Telephonic communications,
• Contacts via the use of SMS texts,
• The transmission of any unwelcome communications using voice,
• Notes, such as those put on the complainant's vehicle windshield,
• Internet community chat boards (Linkedin, Facebook, Twitter among others)
• Persistent unwelcome gifts,
• Threats of physical harm, disgrace, or other forms of coercion,
• Material that is degrading or offensive, such as a hate mail letter,
• Pursues, either on foot or in a car.

Section 359B of the Criminal Code Act 1999 (Qld) defines stalking as the offence purposefully aimed towards specific individuals several times. Stalking is thus identified as a pattern of repeated behaviour. In addition, the behaviour must include at least one of the following:

• Pursuing, hovering around, keeping an eye on, or getting close to someone
• Making any contact with the individual,
• Waiting outside, keeping an eye on, entering, or invading a location where someone resides, works, or frequent,
• The act of leaving objectionable materials in a public place where they will be discovered, received, or noticed by a person,
• Providing an individual with insensitive materials, whether directly or via intermediaries.

Whether actual violence or damage to the victim's property is present, intimidation, harassment, and threats are unlawful.

A stalking act must be such that the complainant has a reasonable fear for their safety (or the safety of their property). Furthermore, the conduct should be one that can potentially harm the stalked individual, either physically or emotionally.

Stalking often involves a variety of nonmaterial variables. Section 359D of Queensland's penal code outlines several immaterial factors for stalking, which includes:

• Whether the perpetrator meant for the stalked individual to be aware of their actions is in question,
• Whether the individual being stalked was the target,
• How much harm it ultimately causes.

Penalties for a Stalking Offence

Stalking carries a five-year jail sentence as a punishment. When there are aggravating factors, the maximum penalty is seven years in jail.

The following are examples of aggravating circumstances:

• The offender uses violence,
• Uses or threatens to use violence against another person or their property,
• The stalker carries a weapon, in violation of the Weapons Act 1990 (Qld) or;
• Acts in violation of an injunctive order or any related order issued by a judge or tribunal under State or Commonwealth law.

But even if the Magistrates Court finds the stalker not guilty, they may nevertheless issue restraining orders at their discretion or upon request from the prosecution or any other interested party.

What the police (prosecution) must prove

In every case, the prosecutors will have to show that the individual charged committed the crime. Police must demonstrate the following to convict the stalker of illegal stalking:

• 1) The act would give rise to the victim's reasonable fear of being attacked, their loved ones, any other person, or their property;

Or

• 2) The offender was intentionally engaged in an act of Stalking; and
• 3) The Conduct was directed at the victim who made the complaint.

It doesn't matter whether the accused meant to instil fear or harm, as described in the section. Also, the police do not need to prove that you did not intend to induce the fear or threat of violence or harm indicated above. It is also unnecessary to show that the stalked individual experienced damage due to the anticipation or threat of the crime or injury. The police have to prove that a reasonable assessment of the stalker's actions generated distress or fear of mental or physical damage.

Circumstances that cannot be used to defend a Stalking Charge

There are certain circumstances that are not relevant to the prosecution of illegal stalking under Section 359C the Criminal Code Act 1999 (Qld). In other words, you can't use those specific circumstances to defend against a charge of unlawful stalking.

The following scenarios are irrelevant when defending yourself against stalking charges:

• The target person was aware that they were being stalked;
• The perpetrator has made a grave blunder concerning the victim's identification;
• Stalking was done with the intent of harming someone else or their property.
• There was no malicious intent on the part of the stalker;
• Fear or apprehension about violence did not arise. The only essential thing is whether the stalker's actions would lead to a reasonable person getting cared for or fearing violence.

Common stalking offences

You can report stalking to the police, and if there's enough proof, the stalker can be charged. The individual bringing stalking charges may be required to appear in Court if the stalker refuses to accept fault. Common stalkers include:

• The de facto partner or spouse of one's past or present,
• Close friends or family members,
• Persons involved in intimate relationships of any kind; or
• Relationships involving unofficial arrangements of care.

Legal assistance with stalking charges

You should consult with a lawyer regarding a protection or good behaviour order, especially where the stalker's behaviour also involves assault, violent threats, property damage, or the danger of harm to property.

Measures to take to ensure your rights are protected

Prosecutors need to know whether the stalker's behaviour and actions have a pattern. If an existing Domestic Violence Order has been obtained against the stalker and the stalker has disobeyed it, inform the authorities. Keep the following information about the stalker in mind:

• Registration, colour, manufacturer, and condition of their car,
• Street addresses where you've seen the stalker lingering, approaching, or keeping watch,
• The stalker's telephone number,
• Have a copy of the texts and emails you receive on your smartphone or computer handy,
• Time and date of the stalking events,
• A summary of what happened or usually happens.

Do I need the services of a legal professional?

Stalking crimes often occur in connection with other criminal acts such as sexual harassment or intimidation. To ensure that their aggravating circumstances are adequately recognised and presented to the Court, you should seek early and skilled legal advice.

If any of the following factors apply to you or your loved ones, you should seek legal counsel;

• The suspected stalker has hired a lawyer to defend them,
• You have been requested to take part in police interviews over a probable stalking offence,
• You feel you're the victim of stalking, and you'd want information on obtaining an injunctive order against your spouse or de facto partner,
• You consider yourself or your loved one to be a target of a stalker and are looking for guidance on how to get protection from a protection order.

Which Court will decide my case?

A Magistrates Court will handle the less severe instances of illegal stalking. However, the District Court (DC) may hear and decide on the cases that involve at least two repeat offences or more severe types of stalking cases.

Stalking behaviour that isn't against the law

The laws in Queensland are broad. When it comes to what constitutes criminal stalking, a few acts are not considered stalking. According to section 359D of the Criminal Code Act 1999 (Qld), the following behaviour is not deemed criminal stalking:

• Surveillance acts offered to a person in order enable them to continue doing what they do for a livelihood;
• Everything stated or done in the course of an actual labour dispute;
• A person's behaviour and conduct that is consistent with their legitimate rights in obtaining or disclosing information;
• Whatever is stated or done and considered part of a genuine public or political disagreement in the interest of the general public;
• Lurking behaviour that is authorised by law, such as under a statute.

Possible defences to a Stalking Offence in Queensland

Some applicable defences to this crime include, but aren't limited to:

• Identification errors, i.e., not the alleged offender,
• Action is taken to carry out the legitimate purposes authorised by an Act of parliament, per an Act's administration,
• Actions are taken in support of a legitimate labour dispute,
• Acts carried out for the benefit of the public in connection with valid political or other public conflicts or concerns,
• An individual's reasonable behaviour in the course of their legal trade, business, or profession,
• A person engages in reasonable action while attempting to gather or provide information in which the individual has a genuine interest.

Will a Stalking Offence show up on a Nationally Coordinated Criminal History Check certificate?

If an individual is convicted for the offence of Stalking, the offence will show up as a disclosable court outcome (DCO) on the results of their Nationally Coordinated Criminal History Check.

Individuals can obtain a Nationally Coordinated Criminal History Check online via the Australian National Character Check - ANCC® website.

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