Stalking: Final Report (html)

8. Responding to people who stalk

Overview

• People who stalk should be accountable for their behaviour.

• Complex factors contribute to stalking.

• There is some evidence that therapeutic treatment may reduce the risk of re-offending.^[1]

• People who stalk need to get the right intervention, early, to stop their behaviour. But reforms, including early intervention, will only work if the services actually exist.

• Electronic monitoring is a controversial criminal justice measure. It is unlikely to achieve its intended goal of keeping people safe. It may also have adverse consequences for people who wear these devices.

• The response to stalking should be coordinated, system-wide, and focus on early intervention. This will help protect people who experience stalking and the community.

• If there are strong indicators that compelling people to have treatment is an effective response to stalking, the Victorian Government should consider introducing court-ordered therapeutic orders.

• Victoria has the highest maximum penalty for the sentencing of stalking. We do not need to change the sentencing laws but courts should be given more guidance on sentencing people who stalk.

The current response to stalking demands too much from victim survivors

8.1 People who experience non-family violence stalking must do a range of things if they seek support from the justice system:

• identify the stalking

• collect evidence

• make a report

• apply for an intervention order

• plan for their safety

• manage their risk of harm.^[2]

8.2 We heard from victim survivors that they are often the ones who have to change their behaviour:

8.3 Stalking is a criminal offence in Victoria. It can be grounds for a personal safety intervention order (PSIO), and it is a criminal offence to breach such an order.

8.4 The Sentencing Advisory Council report found that 57 per cent of people sentenced for a breach of PSIO were sentenced again within four years.^[4] The Council concluded that the rate of reoffending among those convicted of breach of PSIO ‘is significantly higher than Victoria’s general reoffending rate’.^[5]

8.5 Of the 57 per cent of people sentenced for a breach of PSIO who were sentenced again within four years, one quarter were sentenced for a violent offence. Four per cent were sentenced for a stalking offence.^[6] This indicates that legal sanctions alone cannot address the underlying factors that contribute to offending behaviour.

8.6 The response to stalking should shift the burden away from victim survivors who have had the responsibility for action for too long. The focus must be on what people who stalk can do to stop their behaviour.

8.7 Shifting the focus onto people who stalk will also recognise the behaviour as a serious harm.

8.8 Potential benefits of shifting the focus onto people who stalk are:

• stopping the stalking

• keeping victim survivors safe

• preventing stalking from happening again.

8.9 Focusing on stopping the stalking can be a form of justice for victim survivors (see Chapter 1).

8.10 In this chapter, we consider a range of reforms that are needed to strengthen the response to people who stalk.

What do we know about people who stalk?

8.11 Responses to people who stalk should be informed by what we know about them. In this chapter, we consider the key issues that make the prevention, treatment, and management of stalking a challenging task.

People who stalk are diverse

8.12 People who stalk ‘represent an extremely diverse population’.^[7] They are diverse in:

• behaviour and characteristics^[8]

• motivations

• how likely they are to re-offend^[9]

• their needs, which can include mental health or substance misuse support.^[10]

8.13 Interventions for people who stalk must respond to their diversity. A one-size-fits-all approach is likely to be ineffective.

8.14 Specialised responses may be needed for some people, such as Aboriginal people, people with disability, and people from culturally and linguistically diverse communities.^[11]

8.15 Adolescent stalking is a different and complex form of stalking requiring a different response.^[12] We discuss the need for alternative pathways for children and young people (in the civil context) in Chapter 6.

Addressing an association between severe mental disorders and stalking

8.16 Forensicare submitted that the most common severe mental disorders associated with stalking are those characterised by psychosis, depression, and substance use disorder.^[13] Forensicare also noted that personality disorder is commonly associated with stalking.^[14]

8.17 We heard that there may be an association between some forms of intellectual disabilities and stalking behaviour.^[15] The Law Institute of Victoria submitted that some ‘people with intellectual disabilities may not understand appropriate relationship boundaries or that their behaviour is causing harm.’^[16]

8.18 Some forms of severe mental illness and poor mental health may be more prevalent in cases of non-family violence stalking compared with family violence stalking.^[17] For example, some studies suggest that psychosis is more prevalent in non-family violence stalking than family violence stalking.^[18] Because of this association, ‘effectively managing the mental disorder is a critical part of any response to reduce (if not eliminate) the stalking behaviours’.^[19]

8.19 Research has emphasised the importance of therapeutic or psychological intervention for people who stalk.^[20] We received similar feedback from Forensicare^[21] and the Centre for Forensic Behavioural Science.^[22]

8.20 However, the association between severe mental disorders and stalking needs further research. Other factors associated with such behaviour may also need to be addressed.^[23]

A coordinated response to stalking is needed

8.21 People who stalk may have intersecting support needs. Some may need treatment for mental illness and substance misuse or addiction.^[24] Because therapeutic or psychological interventions are critical to addressing stalking, a ‘multifaceted approach’ is required.^[25] The response must draw on the health, community service and justice sectors, and generalist and specialist interventions.

8.22 However, we heard that these systems are often disjointed and the evidence base and services are lacking.^[26]

8.23 We recommend the government develop a coordinated response to non-family violence stalking that links relevant parts of the health, community service and justice sectors, to overcome the current fragmented response. This gives the system the best chance of stopping stalking and doing so early.

8.24 The Royal Commission into Victoria’s Mental Health System identified the need for more ‘integrated’ treatment and made recommendations to address this gap. For example, there are needs:

• for people to receive the most appropriate treatment, care, and support for their needs at any given point

• for mental health treatment, care, and support to be integrated with support for substance use or addiction

• for mental health and wellbeing services for adults to provide consistent treatment, care, and support to people in contact or at risk of contact with the criminal justice system

• for a program for people in prison living with mental illness to transition from correctional setting support to the mental health and wellbeing system when they are released.^[27]

8.25 The Victorian Government has committed to adopting all the recommendations of the Royal Commission,^[28] which will provide a strong framework for developing a coordinated response to non-family violence stalking.

8.26 Reforms to mental health service delivery, including establishing service delivery across Victoria at local, area-based, and statewide levels operating at extended hours and delivered in a variety of settings,^[29] will produce benefits to the whole community, including people who stalk. Such reforms will enable them to access the services they need, more easily.^[30]

8.27 Next we identify key components of a coordinated response, some of which we have drawn from approaches to family violence:^[31]

• building the research base

• making services and funding available in a coordinated way

• building pathways to services.

A research base should be established

8.28 In recommending a program of perpetrator interventions for family violence, the Royal Commission into Family Violence proposed a staged process. It started with building a knowledge base of initiatives before implementing a coordinated approach to perpetrator interventions. The approach resulted in significant research outcomes.^[32]

8.29 We consider a similar approach would be valuable for stalking. The Victorian Government should start by building a knowledge base of initiatives, using that to inform the design and funding of programs.^[33]

8.30 Once a strong legal, policy and service framework is in place, then services can be expanded. However, ongoing research and evaluation is required to improve understanding of what works in treating and preventing stalking.

8.31 Later in the chapter we discuss areas that require further research.

Services and funding should be available

Increasing the availability of general services and support

8.32 The Royal Commission into Victoria’s Mental Health System paints a picture of a mental health service system under increasing pressure, with dramatically increasing demand for treatment for those who use violence.^[34]

8.33 The Royal Commission identified barriers to accessing services and a lack of services in the community. This included barriers for low-income earners who may not be able to afford treatment, care and support, and barriers to accessing treatment and care in rural and regional Victoria.^[35]

8.34 The Royal Commission made recommendations to make it easier than at present for people to access the services they need, when and where they need them.^[36] Implementing these recommendations would increase the treatment, care and support available to people who stalk, and address the factors contributing to stalking.

8.35 Victoria has specialist courts and court programs outside the mainstream court system.^[37] While they do not directly manage stalking behaviour, they can address some of the issues that can occur alongside it. They include:

• The Assessment and Referral Court (ARC), which deals with some charges where the person charged is living with a mental illness or a cognitive impairment.

• The Drug Court, which deals with some alleged offences where a person was dependent on drugs or alcohol, and this was associated with their offending.

• The Court Integrated Services Program, which is a court program that addresses underlying causes of offending. Participants undergo a risk assessment, have a case manager, and receive specialist support across a range of needs including drug and alcohol treatment, mental health treatment and accommodation.

8.36 These courts and programs sometimes deal with people who are charged with stalking, if they meet the requirements for the specialist court to hear the case. Supporting these courts and programs would increase access to treatment, care and support for people who stalk.

8.37 The Royal Commission into Victoria’s Mental Health System recommended expanding the Assessment and Referral Court to each of the 12 headquarter magistrates’ courts to meet demand at existing and new locations.^[38]

Increasing the availability of specialist treatment

What treatments exist for stalking?

8.38 A broad range of therapeutic interventions are needed for people who stalk.

8.39 Treatment for stalking might include:

• interpersonal skill building

• cognitive behavioural therapy

• anger management^[39]

• psychiatric treatment^[40]

• medication.^[41]

8.40 Dialectical Behaviour Therapy (DBT) is one form of therapeutic intervention used in the context of non-family violence stalking.^[42] It emphasises concrete skills and supports learning to manage ‘strong emotions and urges’.^[43] An evaluation of DBT suggests some ‘very preliminary’ positive results on its use.^[44]

8.41 However, we were told there is insufficient research into effective treatments for stalking.^[45] Only a handful of studies (Australian and international) have ‘attempted to describe a treatment model for stalking behaviours, and fewer still have evaluated such treatments’.^[46]

8.42 In relation to DBT, Forensicare submitted: ‘There was no significant treatment effect of DBT … [although] this could be because the control treatment was also effective’.^[47]

8.43 Di McDonald, a person who experienced stalking, was sceptical about how effective treatment programs are for stalking. Di McDonald explained:

8.44 The lack of research on effective treatment is both surprising and concerning, given certain studies suggest the high re-offending rates of those who stalk. We consider this to be a priority area. There is a need for research into the effectiveness of treatment and an evidence-informed therapeutic response to stalking.^[49]

8.45 Purcell and McEwan have identified that the treatment of stalking should be guided by (among other things) the following principles:

• Treatment should be shaped by an assessment of the specific needs of the person who stalks, the context in which the stalking occurs, and their behaviour.

• Treatment should focus on addressing the behaviour of the person who stalks by using cognitive behavioural approaches.

• Pharmacological intervention is the first-line treatment response in some circumstances.

• In addition to rehabilitative treatment, there may need to be other appropriate legal sanctions to protect the stalking victim and deter the person who stalks.^[50]

8.46 However, the sentencing principle of deterrence will be of less significance in cases involving a mental condition that, while falling short of an excuse at law, contributes to the commission of the offence.^[51]

What treatment is available in Victoria for stalking?

8.47 In Victoria, the main therapeutic treatment available for people who stalk is the Problem Behaviour Program (PBP) run by Forensicare.

Stalking treatment should be widely available

8.48 We received submissions supporting the delivery of early and effective treatment for stalking.^[53] Treatment should not be viewed as a substitute for legal sanctions in appropriate circumstances, but exist alongside them.^[54]

8.49 Specialist treatment for stalking behaviour needs to be available,^[55] especially in rural and regional Victoria (see below).

8.50 It needs to be developed based on research (see above), funded,^[56] and responsive to diverse needs and experiences. For example, support should be tailored to the individual needs of all members of the community, including Aboriginal people, people from culturally diverse communities, LGBTIQA+ people, and people with disabilities.

8.51 However, we heard about the following gaps in therapeutic and targeted treatment for people who stalk:

• There is a general lack of services, and significant waiting periods, for example for treatment at the Problem Behaviour Clinic.^[57]

• There is a lack of services for those living in regional and rural areas.^[58] The Problem Behaviour Clinic is located in Melbourne and not accessible state-wide.^[59]

• Treatment may not be affordable.^[60]

• Treatment may not be culturally appropriate or respond to diverse needs. For example, it may not be tailored to people from culturally and linguistically diverse backgrounds,^[61] or people with disabilities.^[62]

8.52 The lack of services was reflected on by some victim survivors. One young person told us:

8.53 Forensicare submitted that ‘in the absence of specific programs for people who stalk, some may be appropriately referred to treatment programs for higher risk violent or sexual offenders’.^[64] However, Forensicare noted that ‘it is likely that programs for violent and sexual offenders are not appropriate for the majority of stalkers whose behaviour does not involve sexual or physical violence’.^[65]

8.54 One way of ensuring that help is available for those who need it would be to fund programs providing specific treatment and support for people who stalk. Better assessment is also needed before referrals to treatment services are made. We discuss this later.

Early intervention should be a priority

8.55 Early intervention programs support or treat people who may offend in the future or become engaged with the criminal justice system. Such people may have thought of offending but have not done so. Others may identify themselves as needing help.

8.56 Early intervention programs can address their potential for offending and contributing factors such as substance misuse, mental health issues or housing insecurity.

8.57 Early intervention encourages people to take responsibility for their behaviour and address it. This benefits both people who experience stalking and people who stalk.

8.58 The criminal justice system often does not intervene until after there has been a significant escalation in behaviour. In these cases, while it might help to prevent further harm and re-offending, it cannot stop the harm that has already occurred or the serious consequences of it.^[66] It has been acknowledged in the United Kingdom that a ‘late intervention culture’ increases the ‘costs of failure’.^[67]

8.59 We received some support for early intervention.^[68]

8.60 There have been very few evaluations of stalking-specific early intervention programs. We note the promising evaluation of the Problem Behaviour Program (PBP) above, which also acts as an early intervention program.

8.61 Similarly an evaluation of the Multi-Agency Stalking Intervention Programme (MASIP), which was developed and used across three sites in England and Wales and which has elements of early intervention, reported some evidence of improvements for people who stalk, including developing motivation and strategies to manage stalking behaviour.^[69]

8.62 The evaluation noted however that more research and evaluation of multi-agency programmes is required to validate the findings of the study.^[70]

8.63 Given the potential effectiveness of early intervention, this is another area for further research and evaluation to determine what initiatives work best for non-family violence stalking.

8.64 Informed by these preliminary evaluations, the Victorian Government should increase the availability of early intervention programs for stalking.

8.65 There are not enough early intervention services for stalking in Victoria.^[71] Regional and rural Victoria should be a priority, where there tend to be more service gaps and a disproportionate number of intervention orders.^[72]

8.66 Early intervention programs should be conducted safely, supported by strong risk management and safety plans. People told us that early intervention programs needed to:

• be victim-centred and protect community and victim safety—for example by taking a multidisciplinary, system-wide approach^[73]

• effectively manage risk of serious harm in stalking situations—for example through assessments, processes for contacting authorities and sometimes longer-term programs^[74]

• target what is motivating the stalking as well as psychological factors^[75]

• address the accountability of people who stalk^[76]

• be tailored to diverse needs^[77]

• be accessible and affordable, particularly in regional and rural areas (specifically Gippsland), where there appear to be disproportionate rates of stalking.^[78]

8.67 A ‘highly specialist workforce’ is also needed.^[79]

8.68 These principles should inform the approach to early intervention in stalking.

8.69 Many of these principles reflect the Headline Standards in the National Outcome Standards for Perpetrator Interventions,^[80] as well as research and practice in treating stalking.

Rehabilitation and reintegration programs should be a priority

8.70 Rehabilitation and reintegration support helps people in prison to rejoin the community successfully. To do so a person needs a range of supports such as housing, employment and social support.^[81]

8.71 Rehabilitation and reintegration support is crucial to ensure people convicted of stalking offences transition successfully back into the community, and do not offend again.^[82]

8.72 The correctional system aims to support people who have been in prison to reintegrate into the community. This may start before they are released from prison and continue after their release, at the end of their sentence or while they are on parole.^[83] Corrections Victoria targets domains such as housing, employment, alcohol and drug support, independent living skills and community and family connection.^[84]

8.73 However, there are barriers for people accessing rehabilitation and reintegration programs:

• People who stalk are poorly identified in the criminal justice system^[85]—for example, because stalking is not charged (see Chapter 7).^[86]

• If charges are pending, information disclosed during treatment is not protected and could be subpoenaed, affecting the accused’s ability to engage with treatment.^[87]

• Specialist treatment, such as the PBP, is difficult to access from prison.^[88]

8.74 The availability of the PBP could be enhanced by better funding. Currently, the PBP is inaccessible to people charged with stalking who are either on remand in custody or on bail in the community. The PBP is also not available for individuals who are on parole, or post-sentence.^[89] Forensicare said that more funding for in-reach services from the PBP could enable Forensicare to provide assessment and treatment in prison.^[90]

8.75 We were told there are not enough services in the pre-sentence and post-release contexts to support those who stalk to manage their behaviour.^[91] It is also unclear whether programs in prison are suitable for people who stalk, if their behaviour does not include physical or sexual violence.^[92]

8.76 There is a need for improved prison-based services, as well as reintegration programs that specifically address stalking behaviour.^[93] This is particularly important given the high rates of re-offending. The Sentencing Advisory Council has suggested expanding prison-based programs.^[94]

Building pathways to treatment and support

8.77 Every time a person who stalks interacts with the justice system, there is an opportunity to influence behaviour change. This may prevent the stalking from escalating^[95] and prevent serious harm.^[96] It is critical that the right intervention happens early.

8.78 Once evidence-informed services are in place, people who stalk should be able to access them from the justice system. There are two components to facilitating this access:

• identifying stalking

• making sure referral pathways are in place.^[97]

8.79 Without effective identification of stalking by police, in the first instance, and by courts, ‘many people who need treatment for their behaviour are not able to access it’.^[98]

8.80 In the interim report and Chapter 6 we made recommendations about the police and courts improving their identification of stalking. This is a crucial first step in ensuring individuals who need help to stop stalking are given appropriate referrals early.

8.81 As part of the coordinated response to stalking, the government should ensure that referral pathways to treatment and support for people who stalk are in place.

Police as a point of intervention

8.82 In our interim report we recommended that Victoria Police identify stalking and make appropriate referrals, including for treatment.^[99]

8.83 The police should make appropriate referrals for assessment. These assessments are important to identify the right treatment programs for the person who stalks.^[100]

Lawyers as a point of intervention

8.84 Lawyers representing people who stalk can play an important role in early intervention. Much work has been done in this area in the context of family violence, following the Royal Commission into Family Violence.^[101] Some of the key actions involve equipping lawyers to:

• identify risk of harm to clients

• properly represent clients without engaging in colluding behaviour

• identify and make appropriate referrals for clients to programs that can address the underlying causes of stalking conduct (either away from court or as part of community orders).

Courts as a point of intervention

8.85 It is preferable that early intervention takes place before a matter gets to court. However the courts still have a role to play as a point of intervention.

8.86 In Chapter 6 we recommend improving the ways that courts identify stalking to facilitate a range of measures, including court referrals of people to treatment and support.

8.87 As the Centre for Forensic Behavioural Studies submitted, in PSIO cases, if the court recognised that a person present may be experiencing severe mental illness, they could access the Mental Health Advice and Response Service in court or make a referral to the local mental health service for an assessment.^[102]

8.88 Further, the Personal Safety Intervention Orders Act 2010 (Vic) enables the court (in explaining the final order) to provide information about any relevant services that may be available to the respondent, including counselling, disability, mental health and drug and alcohol services.^[103]

8.89 Another point of intervention is at the pre-sentence stage. The Royal Australian and New Zealand College of Psychiatrists and Forensicare both submitted that because of a perceived association between severe mental disorders and stalking, a request for a pre-sentence forensic mental health assessment should be routine in cases of stranger or acquaintance stalking.^[104]

8.90 In its report on sentencing stalking, the Sentencing Advisory Council notes that people who stalk:

‘are only required to be assessed for suitability to participate in the [Problem Behaviour Program] if it is an express condition of a CCO [Community Corrections Order], or if a Corrections Victoria case manager deems it appropriate that the [person] be assessed [on the basis of] a more generic CCO condition requiring participation in treatment and rehabilitation’.^[105]

8.91 Making the courts aware of the need for assessment and referral and the pathways available would help people who stalk to get the treatment and support they need. We recommend that education to improve awareness of when and how to get an assessment or make a referral be implemented (see Chapter 4). This should include pre-sentence assessments.

8.92 The Sentencing Advisory Council noted that while ‘courts are often alert for signs that a referral might be appropriate, even without a stalking charge, the likelihood of an appropriate referral being made is increased if there is a stalking charge’.^[106] In Chapter 4 we also recommend improving awareness of lawyers about the consequences of negotiating away stalking charges, and programs available, in line with the findings of the Sentencing Advisory Council.^[107]

8.93 The Magistrates’ Court suggested the need for assessments (including risk assessment) to be available to courts at the bail or pre-plea stage.^[108] The Bail Act 1977 (Vic) already involves the bail decision-maker assessing risk to any person, including the complainant.^[109]

8.94 Forensicare stated that there would be too many practical challenges to implement such a process, such as overwhelming demand of their service, and the potential for self-incrimination for the accused.^[110] However, Forensicare explained that one way that it can assist is where they receive ‘referrals from court for pre-sentence reports’.^[111]

The use of ‘stop conversations’ by Victoria Police as a form of early intervention

8.95 We heard that ‘stop conversations’ may be a way to intervene early in stalking situations.^[112] ‘Stop conversations’ involve police formally notifying the person stalking that their behaviour could lead to criminal charges.^[113]

8.96 Stop conversations are different to police-issued cautions, which already exist as part of the operational policy of Victoria Police. Cautions are infrequently used in the context of stalking. Victoria Police told us that PSIOs are the appropriate police response where there is a genuine and immediate risk to a person’s safety.^[114]

8.97 The Centre for Forensic Behavioural Science submitted that in ‘low concern cases’ it is possible that stop conversations ‘would be equally as effective [as a PSIO] … without the resource implications of having a formal order issued by a court’.^[115]

8.98 There was some support from victim survivors for cautions or stop conversations as a form of early intervention. One person said, ‘it would be great if police would knock on [the] stalker’s door and tell them to back off or it would be taken further’.^[116]

8.99 Another person who spoke of her experience with police 5–10 years ago said:

8.100 Assistant Professor Matthew Raj from Bond University highlighted in his submission a ‘harassment warning letter’ used by Hampshire Constabulary in the United Kingdom. The letter would make the person who was stalking aware that their behaviour was an offence.

8.101 While he said such letters could prevent the PSIO system from being overwhelmed (see Chapter 6), he said that police should have proper guidelines to issue these letters.^[118]

8.102 He noted that ‘no robust empirical data exist in relation to its use, frequency and rate of success in deterring unwanted behaviour’.^[119]

8.103 In 2018, a briefing paper published by the House of Commons recommended that police-issued early warning notices in England and Wales should end.^[120] A review found ‘many examples of inappropriate use … where what was required was a robust investigation with [action taken] to protect the vulnerable victim’.^[121] The review noted that removing early warning notices would result in improved police responses to stalking.^[122]

8.104 Another study reported: ‘In a number of cases, victims prefer an informal response from police like a warning or conversation with the perpetrator’.^[123] But in interviews with victim support practitioners about the practice, most felt that the use of stop conversations as a first intervention was ‘problematic’.^[124] Their concerns included that the practice can minimise the experience of stalking and risk escalating the behaviour once the person stalking knows police are involved.^[125]

8.105 Forensicare explained that stop conversations are only useful in ‘very low-level cases’; where all the victim survivor wants is for the police to tell the person stalking them to stop.^[126]

8.106 Victoria Police is trialling stop conversations as part of its stalking pilot. Their use is being explored in the context of broadening the tools available for frontline and specialist police when responding to lower-risk stalking.^[127]

8.107 Victoria Police said that as part of its evaluation it will consider the value of stop conversations and whether they are an appropriate response to stalking.^[128]

8.108 Based on the issues identified in this inquiry, and the lack of research and evaluation on stop conversations, we do not make recommendations endorsing the practice.

8.109 However, if stop conversations are to become part of the police response to stalking in Victoria, we would suggest putting in place strong oversight and guidance to avoid unintended outcomes. It would be important for data to be collected and published (for example, in Crime Statistics Agency reports about the outcomes of offences). Documenting the conversation may also assist. If the behaviour does not stop following the conversation, this may assist in building a case that could result in charges.^[129]

8.110 Victoria Police submitted that there is ‘no statutory instrument’ underpinning the trial of stop conversations. They said such an instrument would be needed if the use of such conversations was formalised in police practice.^[130]

Court-ordered therapeutic orders for PSIOs

8.111 This section considers the making of a therapeutic order as a condition of a PSIO. This section does not consider court responses to a charge of criminal stalking under the Crimes Act 1958 (Vic).

8.112 In 2009, the Family Violence Protection Act 2008 (Vic) (FVPA) was amended to enable the court to order respondents against whom an intervention order has been made to:

• be assessed for counselling

• if assessed as eligible, attend counselling.^[131]

8.113 The purpose is to encourage the respondent to accept responsibility for the family violence and encourage them to change their behaviour.^[132] Failure to comply with the order is an offence.^[133]

8.114 Coercive measures are generally reserved for the criminal justice system, rather than flowing from civil orders, where the standard of proof is lower. The amendment to the FVPA engaged and limited the protection from torture and cruel, inhuman or degrading treatment in the Charter of Human Rights and Responsibilities Act 2006 (Vic).^[134] The Charter provides that a person must not be subject to medical treatment without their full, free, and informed consent.^[135]

8.115 However, in amending the FVPA, consideration was given to the importance of the purpose of the limitation.^[136] The limitation was considered important as it operates to change a person’s violent behaviour and to protect families and children.^[137] It also operates indirectly to promote the right to life. In this regard, the limitation on human rights was deemed ‘reasonable’ and ‘demonstrably justifiable’ to its purpose.^[138]

8.116 Unlike the FVPA, the PSIO Act does not provide for court-ordered therapeutic orders. In our consultation paper we asked whether there should be an equivalent provision for court-ordered therapeutic orders in the PSIO Act.

8.117 We heard some support from victim survivors and members of the public for compulsory treatment programs for people who stalk.^[139]

8.118 The Victims of Crime Commissioner submitted that there may be benefit in court-ordered treatment but only if there is sufficient evidence to support it.^[140] She pointed to stalking protection orders in the United Kingdom which can include requirements such as attendance at a perpetrator intervention program or a drug and alcohol program.^[141]

8.119 However, the Victims of Crime Commissioner concluded that ‘there would need to be a sound evidence base for compelling respondents in civil matters to engage in mandatory counselling or behaviour change’.^[142]

8.120 Victoria Police also noted the value of a mechanism in the PSIO system that would provide people who stalk with access to therapeutic interventions.^[143] It noted that ‘it is not uncommon for a victim of stalking … to express a genuine desire that they wish the offender could “get the help they need”’.^[144]

8.121 A number of organisations opposed court-ordered therapeutic orders for reasons including:

• There are human rights concerns about forcing a respondent to a PSIO to undergo treatment,^[145] given the lower evidentiary threshold in civil proceedings.

• There are resource implications, given the high number of PSIOs issued and lack of services.^[146]

• Mandated programs may reduce flexibility in identifying the most appropriate program.^[147]

• There is a lack of evidence on the effectiveness of treatment.^[148]

• It is unclear if treatment is effective if it is mandated instead of voluntary.^[149]

8.122 The community legal sector emphasised that respondents to PSIOs would be ‘better supported by early intervention services’ than court-ordered treatment.^[150]

8.123 Organisations working with young people said that if a court-ordered therapeutic order is needed, that is a sign that ‘we are not intervening early enough’.^[151]

8.124 We acknowledge the lack of evidence on the effectiveness of treatment for stalking. We consider that compelling treatment in a civil context cannot be justified based on current research and the treatment programs available. In the absence of a strong evidence base, the immediate focus should be on connecting people who stalk to services, which we recommend as part of our coordinated response to stalking.

8.125 However, as a matter of principle, problem-solving approaches in the court system should be strengthened. Problem-solving approaches seek to combine a justice response with a therapeutic response to address the drivers of offending. Stalking is the kind of offending that could be suitable for a problem-solving approach.

8.126 If sufficient research is undertaken and the treatment for stalking is developed to the point there are strong indicators that compelling such treatment is effective, then the Victorian Government should consider connecting the PSIO response with a requirement to attend treatment, as is the case under the FVPA.

Electronic monitoring

What is electronic monitoring?

8.127 This section considers the use of electronic monitoring as a condition on PSIOs.

8.128 A person who is electronically monitored wears a device that cannot be removed (usually around their ankle) that allows authorities to track their location using global positioning system (GPS) and radio frequency (RF) technologies.^[152] The devices are programmed to communicate to a monitoring centre when certain things occur, such as a person going to a place they should not.^[153]

8.129 Electronic monitoring is now used to monitor compliance with community corrections orders,^[154] parole orders,^[155] and post-sentence supervision orders for some serious sexual and violent offenders.^[156] People in custody can also be subject to electronic monitoring. In Victoria this only happens after people have been convicted.

8.130 The Royal Commission into Family Violence suggested further consideration be given to electronic monitoring as part of an overall approach to family violence. But it did not recommend changing the law.^[157]

8.131 New South Wales,^[158] Tasmania,^[159] South Australia,^[160] and Western Australia^[161] have trialled electronic monitoring for people who have committed significant family violence.

8.132 Tasmania is the only state that provides for electronic monitoring to be included as a condition of a civil protection order if there is a history of family violence.^[162] In other states it is used only in the criminal law setting.

8.133 International research has identified some benefits of electronic monitoring in the context of family violence:

• enhanced community safety

• reduction in repeat offending

• reduced imprisonment rates (and reduced costs of imprisonment)

• increased sense of safety in victim survivors.^[163]

8.134 Electronic monitoring is a controversial criminal justice measure which can be seen as a form of increased penalty.^[164] It is used in Victoria in the context of bail for those suspected of terrorism, for those convicted of sex offences, and to monitor some requirements for those convicted of serious violence offences.^[165]

How effective is electronic monitoring?

8.135 Electronic monitoring may be used to positive effect:

• for certain offenders (such as sex offenders)^[166]

• at certain points in the criminal justice process (post-trial, for home detention or curfews)^[167]

• when combined with exclusion zones and therapeutic components.^[168]

8.136 However, other ‘studies indicate little or no positive impact of electronic monitoring’.^[169] For example, a reconviction study in England and Wales with a sample of approximately 64,000 participants found that offenders subject to electronic monitoring while on home detention were no more likely to be convicted again than those on home detention not subject to electronic monitoring.^[170]

8.137 Preliminary results from the Tasmanian family violence trial, which tracked the movements of 52 family violence intervention order respondents, indicated:

• 70 per cent reduction of assaults

• 80 per cent reduction of threats

• 89 per cent decrease in allegations of emotional abuse

• 100 per cent decrease in reports of stalking.^[171]

8.138 Despite the promising results, the author of the evaluation concluded that ‘further research and data analysis over a longer period of time’ is required.^[172]

8.139 While there has been some research and evaluation of electronic monitoring in a family violence context, no research has been conducted about its use in the context of non-family violence stalking.

Support for electronic monitoring

8.140 Di McDonald, a person who experienced stalking, pointed out that instead of the person who stalked her being electronically monitored, she has needed to wear an electronic monitor to protect herself:

8.141 Di McDonald suggested that electronic monitoring would free up police time, as there were three police stations needing to keep an eye on the person who stalked her.^[174]

8.142 There was support for electronic monitoring in some submissions received.^[175] For example, Derryn Hinch’s Justice Party suggested using the Tasmanian ‘Project Vigilance’ model for ‘certain high-risk stalkers or suspected stalkers’.^[176]

8.143 The Victims of Crime Commissioner suggested that electronic monitoring be ‘explored as a potential option to increase the safety of victims’.^[177] The Victims of Crime Commissioner noted that ‘benefits to victim survivors include peace of mind knowing a perpetrator is being monitored and relief from cessation of behaviours’.^[178]

8.144 In relation to electronic monitoring, victim survivors who expressed support for it thought it would ensure victims felt or were protected.^[179] They also thought it might deter people who stalked from becoming violent.^[180]

8.145 Concerned members of the community felt that electronic monitoring could be a form of ‘early intervention’^[181] or serve as a surveillance system,^[182] especially for ‘high-risk offenders’,^[183] and ‘repeat offenders’.^[184] One went so far as to say, ‘this is the only way I can see how to prevent and protect these women’.^[185] Another felt that electronic monitoring ‘has the potential to save lives’.^[186]

Opposition to electronic monitoring

8.146 However, many organisations opposed electronic monitoring, reporting the following concerns:

• Analysis of electronic monitoring data is not always immediate, which limits the ability of the technology to keep victim survivors safe.^[187]

• There is a possibility of alerting the person wearing the device of the whereabouts of the victim through the use of exclusion zones.^[188]

• It can create a false sense of security for victim survivors if they have expectations of the technology that exceed its capability.^[189]

• The possibility of ‘false’ alerts and other system deficiencies.^[190]

• Exclusion zones are difficult to impose in regional and rural areas, where people are more likely to come across each other.^[191]

• It can cause hypervigilance in victim survivors.^[192]

• Further evaluation of electronic monitoring is needed before implementing such a reform, to improve understanding of how and when it is most effective.^[193]

• Electronic monitoring can be very expensive and Corrections Victoria has limited capacity to expand this measure further.^[194]

• There are human rights concerns in relation to limiting the liberty of people who have not been convicted of a crime.^[195] The Victorian Aboriginal Legal Service noted the ‘scant evidence’ being produced at the PSIO stage and the low threshold for making an order.^[196]

• Wearing an electronic monitoring device may be stigmatising,^[197] and can affect access to treatment and housing.^[198] For example, some housing providers will not accept people who are being electronically monitored.^[199]

8.147 It was submitted that electronic monitoring is ‘only appropriate once an individual has been convicted of serious criminal offending’.^[200]

8.148 Victoria Police submitted that ‘Implementation of electronic monitoring conditions pre-sentence or in a civil setting without charge would be a significant departure from the current model’.^[201]

Conclusion on electronic monitoring

8.149 Electronic monitoring is primarily used after sentencing, and after proof of a criminal offence, which uses a higher standard than what is needed to establish grounds for a personal safety intervention order in the civil system.^[202]

8.150 We are concerned about its use in a civil context, and its net-widening effect, especially of people who do not pose a risk of escalation or reoffending.^[203]

8.151 While we acknowledge that an electronic monitoring condition could be applied only to the most risky or serious cases, there is not enough evidence to show that it would work in a stalking context. It might not achieve the aims of keeping victim survivors safe or deterring people who stalk. It could in fact do the opposite.

8.152 Electronic monitoring is an intelligence tool, which only provides real-time monitoring of people wearing monitoring devices, if there are people monitoring those wearing the devices, in real time.^[204] Real-time monitoring of those subject to a PSIO would be prohibitively expensive and resource-intensive. This means that electronic monitoring is unlikely to protect victims of stalking or prevent a crisis situation from occurring. The best way to do this is by intervening early and identifying the most appropriate individual response. If a person who stalks needs to be restricted beyond what a PSIO can achieve, then criminal charges should be filed.

8.153 Further, electronic monitoring is a significant limitation on the right to privacy in the Charter of Human Rights and Responsibilities Act 2006 (Vic).^[205] Such a limitation must be justified, taking into account factors such as the purpose of the limitation.^[206] The purpose of the limitation in this context, the safety of victim survivors, is very important. However, on the limited available evidence and the balance of submissions received, we do not consider electronic monitoring to be a ‘reasonable’ and ‘demonstrably justifiable’ way of achieving that purpose.^[207]

8.154 We acknowledge the need for enhanced protections for victim survivors of non-family violence stalking. All Victorians have a right to live free from violence and from the perpetual fear of violence that is so often experienced by victim survivors in the aftermath of being stalked. We acknowledge the appeal of electronic monitoring in achieving the goal of keeping victim survivors and the community safe.

8.155 But electronic monitoring is a controversial criminal justice measure and at the civil intervention order stage the disadvantages outweigh the benefits. We make no recommendation in relation to electronic monitoring.

Sentencing stalking

How is stalking sentenced in Victoria?

8.156 The offence of stalking is set out in section 21A of the Crimes Act 1958 (Vic)

(see Chapter 7).

8.157 The maximum penalty for stalking in Victoria is 10 years imprisonment.^[208] However, the maximum 10 years imprisonment applies only in the higher courts. If heard summarily in the Magistrates’ Court, the maximum penalty that can be imposed following conviction is two years imprisonment.^[209] Decisions made by prosecutors on whether a charge should be determined summarily in the Magistrates’ Court can therefore have a major effect on sentencing.

8.158 The maximum penalties for stalking offences are different across Australia: five years imprisonment in the Northern Territory, South Australia, New South Wales and the Australian Capital Territory; up to eight years imprisonment in Western Australia; and up to 10 years imprisonment in Queensland.^[210]

8.159 The Sentencing Advisory Council report on sentencing stalking in Victoria states that ‘most jurisdictions’ maximum penalties only apply if there are aggravating circumstances present, such as if the offending occurred in breach of a court order or while the offender was in possession of a weapon’.^[211]

8.160 In Victoria, however, the 10-year maximum penalty applies in all circumstances, making it effectively the highest maximum penalty for stalking in Australia. The maximum penalty for stalking in Victoria is higher than in most common law countries.^[212]

8.161 The SAC report reveals that:

• immediate custodial sentences were the most common outcomes for stalking charges in the Magistrates’ Court (32 per cent) and in the higher courts (82 per cent)^[213]

• the average prison sentence for the stalking offence in the higher courts was 14 months imprisonment (half were between six months and less than 18 months)^[214]

• prison sentences were more common where a stalking charge was co-sentenced with an assault offence (47 per cent), a bail-related offence (46 per cent) or a breach of an intervention order (41 per cent)^[215]

• community correction orders (CCOs) were the next most common outcomes in both the Magistrates’ Court (31 per cent) and the higher courts (13 per cent), with most CCOs having an assessment and treatment condition (91 per cent), especially when the CCOs were combined with imprisonment (97 per cent).^[216]

Support for increased sentences

8.162 We heard about the need for stronger outcomes for people who stalk from victim survivors and the people who support them. There was support from this group for an increase in sentences.^[217] Other suggestions include requirements to regularly report to a local police station, curfews, and a stalking offenders register.^[218] The Victims of Crime Commissioner also suggested the government consider expanding the sexual offenders register to include stalking.^[219]

8.163 Derryn Hinch’s Justice Party ‘strongly recommend[ed] that the penalties and the sentencing guidelines for stalking offences be urgently revisited’.^[220] Their recommendations included that the maximum penalty in the Magistrates’ Court ‘be significantly increased’.^[221] It submitted that strong sentences would help deter stalking behaviour.^[222]

8.164 Members of the public called for the response to stalking to be strengthened, including through an increase in punishment, such as prison sentences,^[223] with two submissions calling for the re-introduction of the death penalty.^[224]

8.165 One mother who told us about her daughter’s experience of being stalked was disappointed in the sentencing outcome (this person was charged 2–5 years ago):

Guidance on sentencing should be introduced

8.166 While we acknowledge the sentiment of some victim survivors and members of the public on this issue, changes to the maximum sentence for stalking in Victoria are not needed.

8.167 Stalking has a high penalty in Victoria. Other things we have recommended such as early intervention are more likely to achieve the aims of stopping stalking behaviour.

8.168 However, the Sentencing Advisory Council noted that Magistrates’ Courts now have significant guidance about sentencing breaches of family violence intervention orders (FVIOs) and safety notices (FVSNs).^[226]

8.169 In contrast, there is less guidance on sentencing breaches of PSIOs. Although some of the family violence-specific guidance may be relevant to sentencing breaches of PSIOs (especially where they involve family violence), they are typically directed to the ‘unique dynamics of family violence’ and are not always applicable.^[227] Given the increasing prevalence of sentenced non-family violence breaches, there may be a need for similar guidance to be developed for the non-family violence context.^[228] We agree with the Sentencing Advisory Council and recommend specific guidance for sentencing breaches of PSIOs.

1. Kritika Jerath, Lisa Tompson and Jyoti Belur, ‘Treating and Managing Stalking Offenders: Findings from a Multi-Agency Clinical Intervention’ Psychology, Crime & Law 10.1080/1068316X.2022.2057981:1–25.

   ↑

2. Ibid.

   ↑

3. Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021).

   ↑

4. Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) 65.

   ↑

5. Sentencing Advisory Council (Vic), Sentencing Stalking in Victoria (Report, March 2022) 63.

   ↑

6. Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) 67.

   ↑

7. Daniel Shea, ‘Stalking Recidivism and Risk Assessment’ (PhD Thesis, Monash University, 2015) 23.

   ↑

8. Kritika Jerath, Lisa Tompson and Jyoti Belur, ‘Treating and Managing Stalking Offenders: Findings from a Multi-Agency Clinical Intervention’ Psychology, Crime & Law 10.1080/1068316X.2022.2057981:1–25, 2.

   ↑

9. Marijke Malsch, Jan W de Keijser and Sofia EC Debets, ‘Are Stalkers Recidivists? Repeated Offending by Convicted Stalkers’ (2011) 26(1) Violence and Victims 3; Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022).

   ↑

10. Rosemary Purcell and Troy McEwan, ‘Treatment Approaches for Stalking’ in Jane L Ireland, Carol A Ireland and Philip Birch (eds), Violent and Sexual Offenders: Assessment, Treatment and Management (Routledge, 2nd ed, 2018) 400.

    ↑

11. On the general need for perpetrator interventions to respond to diverse needs and experiences: Donna Chung et al, Improved Accountability: The Role of Perpetrator Intervention Systems (Research Report No 20, ANROWS, June 2020) 9; Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) vol 3, 278–280.

    ↑

12. Consultation 36 (Forensicare (No 2)); Rosemary Purcell et al, ‘Stalking among Juveniles’ (2009) 194(5) British Journal of Psychiatry 451.

    ↑

13. Submission 100 (Forensicare).

    ↑

14. Ibid.

    ↑

15. Submission 98 (Law Institute of Victoria); Consultation 13 (Victoria Legal Aid); Rachel Mackenzie et al, ‘Stalkers and Intelligence: Implications for Treatment’ (2010) 21 Journal of Forensic Psychiatry & Psychology 852; Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) 48.

    ↑

16. Submission 98 (Law Institute of Victoria).

    ↑

17. Troy E McEwan and Susanne Strand, ‘The Role of Psychopathology in Stalking by Adult Strangers and Acquaintances’ (2013) 47(6) Australian and New Zealand Journal of Psychiatry 546, 547.

    ↑

18. Ibid 547.

    ↑

19. Submission 100 (Forensicare).

    ↑

20. Kritika Jerath, Lisa Tompson and Jyoti Belur, ‘Treating and Managing Stalking Offenders: Findings from a Multi-Agency Clinical Intervention’ Psychology, Crime & Law 10.1080/1068316X.2022.2057981:1–25; Rachel D MacKenzie and David V James, ‘Management and Treatment of Stalkers: Problems, Options, and Solutions’ (2011) 29(2) Behavioral Sciences & the Law 220; Britta Ostermeyer et al, ‘Stalking and Violence’ (2016) 39(4) Psychiatric Clinics 663; Rosemary Purcell and Troy McEwan, ‘Treatment Approaches for Stalking’ in Jane L Ireland, Carol A Ireland and Philip Birch (eds), Violent and Sexual Offenders: Assessment, Treatment and Management (Routledge, 2nd ed, 2018) 400.

    ↑

21. Submission 100 (Forensicare).

    ↑

22. Submission 32 (Centre for Forensic Behavioural Science).

    ↑

23. Rosemary Purcell and Troy McEwan, ‘Treatment Approaches for Stalking’ in Jane L Ireland, Carol A Ireland and Philip Birch (eds), Violent and Sexual Offenders: Assessment, Treatment and Management (Routledge, 2nd ed, 2018) 400, 503.

    ↑

24. Consultation 1 (Centre for Forensic Behavioural Science).

    ↑

25. Jenny Korkodeilou, ‘“And Where You Go, I’ll Follow”: Stalking and the Complex Task of Preventing It’ in Stephanie Kewley and Charlotte Barlow (eds), Preventing Sexual Violence (Bristol University Press, 1st ed, 2020) 63.

    ↑

26. Submissions 32 (Centre for Forensic Behavioural Science), 100 (Forensicare).

    ↑

27. Royal Commission into Victoria’s Mental Health System (Final Report, 3 February 2021) Recommendation 37.

    ↑

28. Department of Health (Vic), ‘A New Mental Health and Wellbeing Act for Victoria’, Mental Health and Wellbeing Reform (Web Page, 18 March 2022) <http://www.health.vic.gov.au/mental-health-reform/a-new-mental-health-and-wellbeing-act-for-victoria>.

    ↑

29. Royal Commission into Victoria’s Mental Health System (Final Report, 3 February 2021) Recommendation 3(2).

    ↑

30. Consultation 15 (Forensicare (No 1)).

    ↑

31. See generally the RCFV recommendations relating to perpetrators of family violence: Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016) Recommendations 85–92.

    ↑

32. Ibid Recommendations 85–6, 88.

    ↑

33. Submissions 32 (Centre for Forensic Behavioural Science), 100 (Forensicare).

    ↑

34. Royal Commission into Victoria’s Mental Health System (Final Report, 3 February 2021).

    ↑

35. Ibid.

    ↑

36. Ibid Recommendation 6(3).

    ↑

37. Specialist courts in Victoria are divisions of another Court (usually the Magistrates’ Court of Victoria) rather than standalone courts: see, eg, the Magistrates’ Court Act 1989 (Vic), which provides for the establishment of the Drug Court Division, Koori Court Division, Specialist Family Violence Court Division, Neighbourhood Justice Court Division and the Assessment and Referral Court List.

    ↑

38. Royal Commission into Victoria’s Mental Health System (Final Report, 3 February 2021) Recommendation 37(1).

    ↑

39. Consultation 15 (Forensicare (No 1)).

    ↑

40. Rachel D MacKenzie and David V James, ‘Management and Treatment of Stalkers: Problems, Options, and Solutions’ (2011) 29(2) Behavioral Sciences & the Law 220; Troy E McEwan and Susanne Strand, ‘The Role of Psychopathology in Stalking by Adult Strangers and Acquaintances’ (2013) 47(6) Australian and New Zealand Journal of Psychiatry 546, 553.

    ↑

41. Rosemary Purcell and Troy McEwan, ‘Treatment Approaches for Stalking’ in Jane L Ireland, Carol A Ireland and Philip Birch (eds), Violent and Sexual Offenders: Assessment, Treatment and Management (Routledge, 2nd ed, 2018) 400.

    ↑

42. Ibid 505.

    ↑

43. Barry Rosenfeld et al, ‘Dialectical Behavior Therapy (DBT) for the Treatment of Stalking Offenders: A Randomized Controlled Study’ (2019) 43(4) Law and Human Behavior 319, 320.

    ↑

44. Rosemary Purcell and Troy McEwan, ‘Treatment Approaches for Stalking’ in Jane L Ireland, Carol A Ireland and Philip Birch (eds), Violent and Sexual Offenders: Assessment, Treatment and Management (Routledge, 2nd ed, 2018) 400, 505.

    ↑

45. Submission 32 (Centre for Forensic Behavioural Science); Consultation 15 (Forensicare (No 1)).

    ↑

46. Kritika Jerath, Lisa Tompson and Jyoti Belur, ‘Treating and Managing Stalking Offenders: Findings from a Multi-Agency Clinical Intervention’ Psychology, Crime & Law 10.1080/1068316X.2022.2057981:1–25, 5. Examples of those studies include: Rosemary Purcell and Troy McEwan, ‘Treatment Approaches for Stalking’ in Jane L Ireland, Carol A Ireland and Philip Birch (eds), Violent and Sexual Offenders: Assessment, Treatment and Management (Routledge, 2nd ed, 2018) 400; Barry Rosenfeld et al, ‘Dialectical Behavior Therapy (DBT) for the Treatment of Stalking Offenders: A Randomized Controlled Study’ (2019) 43(4) Law and Human Behavior 319; R Wheatley, B Winder and DJ Kuss, ‘What Are the Features of Psychopathology for Men Who Commit Stalking Offences? A Systematic Review’ (2020) 55 Aggression and Violent Behavior 101461:1–15.

    ↑

47. Submission 100 (Forensicare).

    ↑

48. Submission 70 (Di McDonald).

    ↑

49. Submission 32 (Centre for Forensic Behavioural Science); Rosemary Purcell and Troy McEwan, ‘Treatment Approaches for Stalking’ in Jane L Ireland, Carol A Ireland and Philip Birch (eds), Violent and Sexual Offenders: Assessment, Treatment and Management (Routledge, 2nd ed, 2018) 400, 505.

    ↑

50. Paraphrased from Rosemary Purcell and Troy McEwan, ‘Treatment Approaches for Stalking’ in Jane L Ireland, Carol A Ireland and Philip Birch (eds), Violent and Sexual Offenders: Assessment, Treatment and Management (Routledge, 2nd ed, 2018) 400, 506.

    ↑

51. ‘Mental Impairment and Sentencing’, Sentencing Advisory Council (Web Page, February 2021) <https://www.sentencingcouncil.vic.gov.au/about-sentencing/mental-impairment-and-sentencing>.

    ↑

52. Consultation 15 (Forensicare (No 1)); Jennifer McCarthy, James Ogloff and Troy McEwan, ‘An Evaluation of the Problem Behaviour Program: A Community Based Model for the Assessment and Treatment of Problem Behaviours’, Forensicare (Web Page) <https://www.forensicare.vic.gov.au/an-evaluation-of-the-problem-behaviour-program-a-community-based-model-for-the-assessment-and-treatment-of-problem-behaviours/>.

    ↑

53. Submissions 55 (Springvale Monash Legal Service), 97 (Federation of Community Legal Centres).

    ↑

54. Submission 56 (Derryn Hinch’s Justice Party).

    ↑

55. Submissions 32 (Centre for Forensic Behavioural Science), 98 (Law Institute of Victoria); Consultations 13 (Victoria Legal Aid), 15 (Forensicare (No 1)).

    ↑

56. Submissions 32 (Centre for Forensic Behavioural Science), 100 (Forensicare).

    ↑

57. Consultation 15 (Forensicare (No 1)).

    ↑

58. Submission 41 (Djirra); Consultation 16 (Centre for Excellence in Child and Family Welfare: Young People and Stalking).

    ↑

59. Consultation 6 (Magistrates’ Court of Victoria (No 1)).

    ↑

60. Submission 97 (Federation of Community Legal Centres).

    ↑

61. Submissions 98 (Law Institute of Victoria), 97 (Federation of Community Legal Centres).

    ↑

62. Consultation 22 (Small group meeting on stalking and people with disabilities).

    ↑

63. Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021).

    ↑

64. Submission 100 (Forensicare).

    ↑

65. Ibid.

    ↑

66. See Centre for Innovative Justice, RMIT University, Opportunities for Early Intervention: Bringing Perpetrators of Family Violence into View (Report, March 2015) 27–8.

    ↑

67. Graham Allen, Early Intervention: Smart Investment, Massive Savings (Second Independent Report to Her Majesty’s Government, July 2011) <https://www.gov.uk/government/publications/early-intervention-smart-investment-massive-savings>.

    ↑

68. Consultations: 13 (Victoria Legal Aid), 22 (Small group meeting on stalking and people with disabilities).

    ↑

69. Kritika Jerath, Lisa Tompson and Jyoti Belur, ‘Treating and Managing Stalking Offenders: Findings from a Multi-Agency Clinical Intervention’, Psychology, Crime & Law 10.1080/1068316X.2022.2057981:1–25.

    ↑

70. Ibid.

    ↑

71. Submissions 32 (Centre for Forensic Behavioural Science), 98 (Law Institute of Victoria), 93 (Royal Australian and New Zealand College of Psychiatrists); Consultations 13 (Victoria Legal Aid), 15 (Forensicare (No 1)).

    ↑

72. Submission 32 (Centre for Forensic Behavioural Science); Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022).

    ↑

73. Submission 49 (Victims of Crime Commissioner).

    ↑

74. Submissions 32 (Centre for Forensic Behavioural Science), 100 (Forensicare).

    ↑

75. Submissions 32 (Centre for Forensic Behavioural Science), 100 (Forensicare); Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022).

    ↑

76. Submission 56 (Derryn Hinch’s Justice Party).

    ↑

77. Submission 98 (Law Institute of Victoria); Consultation 13 (Victoria Legal Aid).

    ↑

78. Submission 32 (Centre for Forensic Behavioural Science); Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022).

    ↑

79. Consultation 15 (Forensicare (No 1)).

    ↑

80. Department of Social Services (Cth), National Outcome Standards for Perpetrator Interventions (Baseline report 2015–16, 21 November 2015).

    ↑

81. Elena Campbell, Centre for Innovative Justice, RMIT University, Integrating the Indefensible—What Role Should the Community Play? (Issues Paper, December 2017).

    ↑

82. Corrective Services Administrators’ Council (Cth), Guiding Principles for Corrections in Australia (Guidelines, 2018).

    ↑

83. Ibid.

    ↑

84. Corrections Victoria, ‘Transition and Reintegration Unit Brochures’, Corrections, Prisons and Parole (Web Page) <https://www.corrections.vic.gov.au/transition-and-reintegration-unit-brochures>.

    ↑

85. Consultation 15 (Forensicare (No 1)); Kritika Jerath, Lisa Tompson and Jyoti Belur, ‘Treating and Managing Stalking Offenders: Findings from a Multi-Agency Clinical Intervention’ Psychology, Crime & Law 10.1080/1068316X.2022.2057981:1–25, 5.

    ↑

86. Submission 100 (Forensicare); Victorian Law Reform Commission, Stalking (Interim Report No 44, December 2021).

    ↑

87. Submission 100 (Forensicare).

    ↑

88. Ibid.

    ↑

89. Ibid.

    ↑

90. Consultation 15 (Forensicare (No 1)).

    ↑

91. Submission 32 (Centre for Forensic Behavioural Science); Consultation 33 (VACRO).

    ↑

92. Rosemary Purcell and Troy McEwan, ‘Treatment Approaches for Stalking’ in Jane L Ireland, Carol A Ireland and Philip Birch (eds), Violent and Sexual Offenders: Assessment, Treatment and Management (Routledge, 2nd ed, 2018) 400.

    ↑

93. Consultation 33 (VACRO).

    ↑

94. Sentencing Advisory Council (Vic), Sentencing Stalking in Victoria (Report, March 2022).

    ↑

95. Submission 32 (Centre for Forensic Behavioural Science).

    ↑

96. Consultation 7 (Risk roundtable).

    ↑

97. Submissions 32 (Centre for Forensic Behavioural Science), 100 (Forensicare).

    ↑

98. Kritika Jerath, Lisa Tompson and Jyoti Belur, ‘Treating and Managing Stalking Offenders: Findings from a Multi-Agency Clinical Intervention’ Psychology, Crime & Law 10.1080/1068316X.2022.2057981:1–25, 3.

    ↑

99. Victorian Law Reform Commission, Stalking (Interim Report No 44, December 2021).

    ↑

100. Consultation 13 (Victoria Legal Aid); Rachel Mackenzie et al, ‘Stalkers and Intelligence: Implications for Treatment’ (2010) 21 Journal of Forensic Psychiatry & Psychology 852.

     ↑

101. See, eg, Victoria Legal Aid, Family Violence—Our Response (Web Page, 2022) <http://www.legalaid.vic.gov.au/node/9836>.

     ↑

102. Submission 32 (Centre for Forensic Behavioural Science).

     ↑

103. Personal Safety Intervention Orders Act 2010 (Vic) s 76(4).

     ↑

104. Submissions 93 (Royal Australian and New Zealand College of Psychiatrists), 100 (Forensicare).

     ↑

105. Sentencing Advisory Council (Vic), Sentencing Stalking in Victoria (Report, March 2022) xiii.

     ↑

106. Ibid xiii.

     ↑

107. Sentencing Advisory Council (Vic), Sentencing Stalking in Victoria (Report, March 2022).

     ↑

108. Consultation 34 (Magistrates’ Court of Victoria (No 2)).

     ↑

109. Bail Act 1977 (Vic) s 4E.

     ↑

110. Consultation 36 (Forensicare (No 2)).

     ↑

111. Ibid.

     ↑

112. Submissions 32 (Centre for Forensic Behavioural Science), 51 (Matthew Raj); Consultation 7 (Risk roundtable).

     ↑

113. Submission 32 (Centre for Forensic Behavioural Science).

     ↑

114. Submission 115 (Victoria Police—supplementary response); Sarah Bright, Lauren Barnaba and Melanie Millsteed, Attrition of Stalking Offence Incidents through the Victorian Criminal Justice System (Data Snapshot, Crime Statistics Agency, forthcoming).

     ↑

115. Submission 32 (Centre for Forensic Behavioural Science).

     ↑

116. Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021).

     ↑

117. Ibid.

     ↑

118. Submission 51 (Matthew Raj).

     ↑

119. Ibid.

     ↑

120. Pat Strickland, Harassment: ‘Police Information Notices’ or ‘Early Harassment Notices’ in England and Wales (House of Commons Library Research Briefing No 06411, 29 June 2018).

     ↑

121. Ibid 12.

     ↑

122. Pat Strickland, Harassment: ‘Police Information Notices’ or ‘Early Harassment Notices’ in England and Wales (House of Commons Library Research Briefing No 06411, 29 June 2018).

     ↑

123. Tim Boehnlein et al, ‘Responding to Stalking Victims: Perceptions, Barriers, and Directions for Future Research’ (2020) 35(7) Journal of Family Violence 755, 757.

     ↑

124. Ibid 761.

     ↑

125. Ibid.

     ↑

126. Consultation 36 (Forensicare (No 2)).

     ↑

127. Submission 115 (Victoria Police—supplementary response).

     ↑

128. Ibid.

     ↑

129. Tim Boehnlein et al, ‘Responding to Stalking Victims: Perceptions, Barriers, and Directions for Future Research’ (2020) 35(7) Journal of Family Violence 755, 761.

     ↑

130. Submission 115 (Victoria Police—supplementary response).

     ↑

131. Family Violence Protection Act 2008 (Vic) s 127(b), 130.

     ↑

132. Ibid s 127(b)(i), (ii).

     ↑

133. Ibid s 130(4).

     ↑

134. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7(2).

     ↑

135. Ibid s 10(c).

     ↑

136. Parliamentary Debates, Legislative Council, 25 June 2009, 2158 (Robert Hulls).

     ↑

137. Ibid.

     ↑

138. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7(2).

     ↑

139. Submissions 10 (Rochelle Carli), 62 (Name withheld).

     ↑

140. Submission 49 (Victims of Crime Commissioner).

     ↑

141. Stalking Protection Act 2019 s 2(64).

     ↑

142. Submission 49 (Victims of Crime Commissioner).

     ↑

143. Submission 115 (Victoria Police).

     ↑

144. Ibid.

     ↑

145. Submission 47 (Liberty Victoria); Consultation 15 (Forensicare (No 1)).

     ↑

146. Submissions 98 (Law Institute of Victoria), 100 (Forensicare).

     ↑

147. Submission 97 (Federation of Community Legal Centres).

     ↑

148. Consultation 15 (Forensicare (No 1)).

     ↑

149. Submissions 47 (Liberty Victoria), 93 (Royal Australian and New Zealand College of Psychiatrists), 95 (Springvale Monash Legal Service).

     ↑

150. Consultation 19 (Community legal sector roundtable). Springvale Monash Legal Service told us that ‘court imposed treatment orders should be considered as a last resort and if imposed, be in the least restrictive form’: Submission 95 (Springvale Monash Legal Service).

     ↑

151. Consultation 17 (Small group meeting on stalking and young people).

     ↑

152. Lorana Bartels and Marietta Martinovic, ‘Electronic Monitoring: The Experience in Australia’ (2017) 9(1) European Journal of Probation 90.

     ↑

153. Ibid.

     ↑

154. Sentencing Act 1991 (Vic) s 48LA.

     ↑

155. ‘Parole Conditions’, Adult Parole Board Victoria (Web Page) <https://www.adultparoleboard.vic.gov.au/parole-process/parole-conditions>.

     ↑

156. Serious Offenders Act 2018 (Vic) s 141.

     ↑

157. Royal Commission into Family Violence: Report and Recommendations (Final Report, March 2016).

     ↑

158. Standing Committee on Social Issues, Parliament of New South Wales, Domestic Violence Trends and Issues in NSW (Report No 46, August 2012).

     ↑

159. Mark Shelton, Minister for Police, Fire and Emergency Management (Tas), ‘Electronic Monitoring Trial Delivers Real Results in Supporting Victims of Family Violence’ (Media Release, 20 August 2020).

     ↑

160. ‘Domestic Violence Offenders in SA to Be GPS Tracked’, ABC News (online, 17 April 2017) <https://www.abc.net.au/news/2017-04-18/domestic-violence-offenders-to-be-gps-tracked-in-sa/8448666>.

     ↑

161. Department of Justice (WA), ‘Family and Domestic Violence Offenders Face GPS Tracking’, WA.Gov.Au (Web Page, 18 August 2020) <https://www.wa.gov.au/government/announcements/family-and-domestic-violence-offenders-face-gps-tracking>; Family Violence Legislation Reform (COVID-19 Response) Act 2020 (WA).

     ↑

162. Family Violence Act 2007 (Tas) s 16(3)(c).

     ↑

163. Heather Nancarrow and Tanya Modini, Electronic Monitoring in the Context of Domestic and Family Violence (Report for the Department of Justice and Attorney-General (Qld), ANROWS, 2018).

     ↑

164. Jyoti Belur et al, ‘A Systematic Review of the Effectiveness of the Electronic Monitoring of Offenders’ (2020) 68 Journal of Criminal Justice 101686:1–18.

     ↑

165. Ibid.

     ↑

166. Ibid.

     ↑

167. Heather Nancarrow and Tanya Modini, Electronic Monitoring in the Context of Domestic and Family Violence (Report for the Department of Justice and Attorney-General (Qld), ANROWS, 2018) 2.

     ↑

168. Jyoti Belur et al, ‘A Systematic Review of the Effectiveness of the Electronic Monitoring of Offenders’ (2020) 68 Journal of Criminal Justice 101686:1–18.

     ↑

169. Ibid; Heather Nancarrow and Tanya Modini, Electronic Monitoring in the Context of Domestic and Family Violence (Report for the Department of Justice and Attorney-General (Qld), ANROWS, 2018) 29.

     ↑

170. A Hucklesby and E Holdsworth, Electronic Monitoring in England and Wales (Report, 2016).

     ↑

171. Romy Winter et al, Evaluation of Project Vigilance: Electronic Monitoring of Family Violence Offenders (Final Report, University of Tasmania, Tasmanian Institute of Law Enforcement Studies, July 2021) 49.

     ↑

172. Ibid.

     ↑

173. Submission 70 (Di McDonald).

     ↑

174. Ibid.

     ↑

175. Submissions 10 (Rochelle Carli), 54 (Riana Leonardi, Hannah Smith, Dahlia Mahmoud, Melissa Caligiore), 55 (Bianca Adams), 56 (Derryn Hinch’s Justice Party), 60 (Dianne Russell), 61 (Naciyelara Erel), 63 (Madison), 64 (Phillip Castagna), 67 (Erin Scrimshaw), 68 (Natasha Walters), 72 (Sarah Pervaiz), 85 (John Raphael Violeta), 90 (Carmela Melinda DiMauro).

     ↑

176. Submission 56 (Derryn Hinch’s Justice Party).

     ↑

177. Submission 49 (Victims of Crime Commissioner).

     ↑

178. Submission 49 (Victims of Crime Commissioner).

     ↑

179. Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021).

     ↑

180. Ibid.

     ↑

181. Submission 26 (KB).

     ↑

182. Submissions 10 (Rochelle Carli), 60 (Dianne Russell), 64 (Phillip Castagna), 85 (John Raphael Violeta).

     ↑

183. Submissions 54 (Riana Leonardi, Hannah Smith, Dahlia Mahmoud, Melissa Caligiore), 68 (Natasha Walters), 72 (Sarah Pervaiz), 90 (Carmela Melinda DiMauro).

     ↑

184. Submission 36 (Ahmad Masri).

     ↑

185. Submission 60 (Dianne Russell).

     ↑

186. Submission 67 (Erin Scrimshaw).

     ↑

187. Consultation 3 (Victoria Police (No 1)).

     ↑

188. Ibid.

     ↑

189. Ibid.

     ↑

190. Ibid.

     ↑

191. Consultation 26 (Victoria Police (No 3)).

     ↑

192. Ibid.

     ↑

193. Submission 97 (Federation of Community Legal Centres).

     ↑

194. Consultation 26 (Victoria Police (No 3)).

     ↑

195. Submissions 47 (Liberty Victoria), 98 (Law Institute of Victoria), 95 (Springvale Monash Legal Service), 97 (Federation of Community Legal Centres); Consultations 13 (Victoria Legal Aid), 10 (Victorian Aboriginal Legal Service), 30 (Roundtable with multicultural and multifaith lawyers and legal stakeholders).

     ↑

196. Consultation 10 (Victorian Aboriginal Legal Service).

     ↑

197. Ibid; Consultation 13 (Victoria Legal Aid).

     ↑

198. Consultation 13 (Victoria Legal Aid).

     ↑

199. Submission 27 (Victoria Legal Aid); Consultation 10 (Victorian Aboriginal Legal Service).

     ↑

200. Submission 27 (Victoria Legal Aid).

     ↑

201. Consultation 3 (Victoria Police (No 1)).

     ↑

202. Jyoti Belur et al, ‘A Systematic Review of the Effectiveness of the Electronic Monitoring of Offenders’ (2020) 68 Journal of Criminal Justice 101686:1–18.

     ↑

203. Ibid.

     ↑

204. Consultation 3 (Victoria Police (No 1)).

     ↑

205. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13.

     ↑

206. Ibid s 7(2).

     ↑

207. Ibid.

     ↑

208. Crimes Act 1958 (Vic) s 21A(1). When the offence is tried summarily (in the Magistrates’ Court), it is subject to the standard restrictions for offences tried summarily. That is, the maximum penalty for a single charge is two years’ imprisonment, and the maximum cumulation or aggregate sentence where there are multiple charges in a case is five years’ imprisonment: Sentencing Act 1991 (Vic) ss 113A, 113B.

     ↑

209. Sentencing Act 1991 (Vic) s 113.

     ↑

210. Sentencing Advisory Council (Vic), Sentencing Stalking in Victoria (Report, March 2022).

     ↑

211. Ibid 8. See, eg, Criminal Code Act 1983 (NT) s 189(2)(b)

     ↑

212. Ibid 9.

     ↑

213. Ibid 55.

     ↑

214. Ibid 56 Due to data availability and reliability, this report does not provide sentence lengths for prison sentences imposed in the Magistrates’ Court.

     ↑

215. Ibid 46.

     ↑

216. Ibid 67.

     ↑

217. Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021); Submissions 26 (KB), 31 (Name withheld), 36 (Ahmad Masri), 60 (Dianne Russell), 70 (Di McDonald).

     ↑

218. Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021).

     ↑

219. Submission 33 (Victims of Crime Commissioner).

     ↑

220. Submission 56 (Derryn Hinch’s Justice Party).

     ↑

221. Ibid.

     ↑

222. Ibid.

     ↑

223. Submissions 30 (Name withheld), 54 (Riana Leonardi, Hannah Smith, Dahlia Mahmoud, Melissa Caligiore), 57 (Name withheld), 61 (Naciyelara Erel), 82 (Tring Nguyen), 90 (Carmela Melinda DiMauro).

     ↑

224. Submissions 64 (Phillip Castagna), 90 (Carmela Melinda DiMauro).

     ↑

225. Victorian Law Reform Commission, Stalking: Summary of Responses to Online Feedback Form from People with Experience of Stalking (Report, August 2021).

     ↑

226. Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) 14; Judicial College Victoria, Family Violence Bench Book (Online Manual) <https://www.judicialcollege.vic.edu.au/eManuals/FVBB>.

     ↑

227. Sentencing Advisory Council (Vic), Sentencing Breaches of Personal Safety Intervention Orders in Victoria (Report, February 2022) 14.

     ↑

228. Ibid 73.

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