Stalking Offences and Penalties in South Australia (SA)

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In Australia, various states have their own definitions of stalking. However, at its core, it is defined by a pattern of recurring, often intrusive acts designed to frighten and scare those targeted.

The offence of stalking is outlined in section 19AA of the Criminal Law Consolidation Act 1935 (SA).

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

Stalking Offences in South Australia

A person who stalks another illegally commits an offence. Stalking became illegal in 1994 when the state enacted new legislation outlawing such acts.

According to SA law, stalking arises when a person:

• Either follows another, or
• Loiters in front of a person's home or favourite hangout; or
• The act of entering or interfering with properties of another; or
• Provides offensive materials to another individual, or places it in a location where they may find it or become aware of it; or
• Disseminates or transmit objectionable content over the internet or other digital communication methods in such a manner that it will be discovered or brought to the notice of the target individual; or
• Communicating with the target person in a way that might create dread or alarm to that person through the mail, phone, fax or online; or
• Does anything to generate dread or alarm to the target person (by, for example using, mail, telephone, fax, or internet); or
• Keeps the target victim under constant surveillance; or
• Anything else done to create worry or terror in the minds of other people; and

These actions need to be performed to cause severe bodily or mental injury to that victim or a third party or cause significant apprehension or terror.

The following are some examples of circumstances when courts have determined that stalking has occurred:

• Contacting the targeted individual after they have made it apparent, they do not wish to be contacted in the future.
• Visiting several locations frequented by the target even though the offender would not ordinarily visit such locations.
• Following a person's social networking sites after they have made it plain, they wouldn't want these posts, and then writing on their pages repeatedly.
• When someone has explicitly said that they do not want to receive gifts from you, sending them anyhow is considered an offence.
• Paying a visit to the target person's residence or job and keeping watch or driving by the location regularly when there is no compelling need to do so.

Aggravating Factors

Any element or condition that raises the severity or criminality of criminal conduct is considered an aggravating factor. Recidivism, showing no remorse, the level of damage done to the victim, or executing the offence before a child are some of the general forms of aggravating circumstances.

The stalking offence may be made more severe if:

• The behaviour violates another court orders or injunctions (for example, intervention orders); or
• The perpetrator had an offensive weapon; or
• If the complainant is a vulnerable individual (such as a current or past spouse); or
• For any other purpose specified in section 5AA of the Criminal Law Consolidation Act 1935 (SA).

Stalking offenders

The categorising of offenders is vital to aid the police's identification and combat stalking crimes.

Police often use typologies to identify suspects, and they include:

• The victim's personality traits;
• How the stalker and victim are related (colleague, online acquaintances, or former spouse);
• The stalker's motives (vengeance, love, and rejection; and the
• Stalkers' mental qualities (erotomanic, or simple obsessional).

The burden of proof lies with the prosecution in a stalking case.

If the prosecution can establish that the defendant participated in behaviour that may be considered stalking, they have met their burden of proof.

Even when the defendant denies participating in particular behaviour, such as going to or driving by the plaintiff's property, or has an acceptable justification for going to the places or indulging in the behaviour in question, this might be a high barrier for the plaintiff to clear.

What are the police required to prove?

One may be convicted of stalking if they stalk for at least twice on separate occasions with the intent to cause significant bodily or mental injury to the victim or third party or to induce considerable apprehension or dread.

Criminal sanctions for stalking in South Australia

As per section 19AA of the Criminal Law Consolidation Act 1935 (SA);

• A) The presence of any aggravating factor increases the severity of stalking punishment. Thus, stalking offences in south Australia can make one land a jail term of five (5) years in prison if:
1. Court orders or injunctive orders were violated by the offender's actions;
2. The defendant had an offensive weapon(s) at any time during the execution of the offence;
• B) The offence attracts a maximum sentence of three (3) years in jail if there were no aggravating factors.

A person convicted of stalking is presumed to have been convicted with offensive behaviour in the alternative. It implies that if the court determines that the allegation of stalking is not proven but is convinced that the lesser crime of offensive behaviour is substantiated, the offender may be convicted of that offence.

Orders for Protection Against Assault in South Australia

Intervention orders (formerly referred to as restraining orders) are issued to limit a specific person's behaviour or acts. They're frequently issued to shield victims of domestic violence or abuse from harm, for example from assault offences.

A judge or a police officer may issue temporary intervention orders. A Magistrate will hear them and decide one of two things:

• Order confirmation,
• The interim order may be changed or substituted,
• Rescind the temporary court order,
• An order that a Magistrate has confirmed has no expiration date. A judge of a superior court must rescind such a court order to halt a verified intervention.

The police or the judge might issue interim intervention orders. For example, a Magistrates' Court may impose intervention orders, limiting someone's behaviour and acts.

The defendant is the one whose activities are limited as a result of an intervention order.

A ‘protected person’ is someone who is shielded from harm because of the intervention order.

It's possible to prevent a stalker from entering a particular property even if they:

• Have made this their home since the offence,
• They own the property; for example, if a spouse is convicted of stalking, they may be barred from re-entering the house they lived in with their spouse after a relationship breakdown.
• Signed a lease agreement to rent the property.

There's a chance this will happen if the order is affirmed or an interim order is issued.

Intervention orders operate on a national scale.

Domestic violence intervention orders will generally be nationally recognised and enforced. As a result, no matter where your order is issued, it will cover all States and Territories in Australia, ensuring the victims safety no matter where they are.

Cyberstalking and Cyberharassment

When it comes to domestic abuse, cyberstalking and cyber harassment have grown to be significant problems. Victims of domestic violence in South Australia may complain that their ex-spouses are increasingly subjecting them to harassment and threats over the phone or the internet. This includes posting personal photos or content on the internet.

How to deal with cyberstalking

You can obtain orders under the Intervention Orders (Prevention of Abuse) Act 2009 (SA), mainly against uploading and sharing intimate or graphic content.

A court may issue orders that impose both limitations and obligations in addition to 'no contact' and 'no violence' prohibitions. As an example:

• The court will prohibit the defendant from posting any offensive information about the affected person on the internet through Email, Text, or other digital methods.
• In no more than a day (24 hours) after receiving this order, the offender must permanently remove and destroy any obscene or intrusive photos or videos of the protected person in their possession or control.

You may contact an experienced lawyer in South Australia for guidance on your options for getting the material removed.

It is instrumental if your previous request to the publisher of the material or the individual providing the images was unsuccessful or if you seem unable to make such a demand yourself.

Will a Stalking Offence in South Australia (SA) 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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