Stalking: Consultation Paper (html)

5. Criminal law responses to stalking

Introduction

5.1 This chapter looks at how the criminal law deals with stalking. It focusses primarily on the criminal offence of stalking and considers how it interacts with other offences.

The criminal offence of stalking

5.2 Stalking is a criminal offence in all Australian states and territories.^[144] In Victoria stalking is an indictable offence that can be heard and determined summarily.^[145] This means that it can be tried in the Magistrates’ Court. Most stalking offences in Victoria are tried in the Magistrates’ Court.^[146]

5.3 Stalking was first introduced as an offence in Victoria in 1994.^[147] The offence was introduced in response to an identified gap in the law in situations where a person had not been threatened or physically attacked but had been ‘followed, placed under surveillance, contacted or sent offensive items’.^[148] The legislation was broadly drafted to recognise the ‘diversity of situations where people have been stalked’.^[149]

5.4 The offence of stalking has since been amended to cover a broader range of conduct including technology-based behaviours^[150] and some types of bullying.^[151]

5.5 A wider range of harms to the victim have been included so that self-harm, psychological harm and suicidal thoughts are recognised.^[152] The legislation also now covers situations where the victim was not harmed or did not feel fear or apprehension where the accused person intended to cause harm or arouse fear or apprehension or knew that it was likely that this would be the result of their conduct.^[153]

5.6 Stalking laws in some other jurisdictions have gaps which have already been addressed in the Victorian legislation. For example, stalking laws have been criticised for failing to address situations where a person being stalked is not aware of the stalking or where an accused does not understand the consequences of their conduct.^[154] These situations are covered in Victoria.

5.7 The accused does not need to understand the consequences of their conduct for the offence to apply. It is enough if the court considers they ought to have understood those consequences in the particular circumstances.^[155] This ‘enables the court to consider factors such as the alleged offender’s age, intellectual capacity and cultural background when determining culpability’.^[156]

5.8 If the accused intended to cause harm or arouse apprehension or fear in the mind of the victim, they have committed the offence, even if the victim was not actually afraid or was unaware of the stalking.^[157]

5.9 The Victorian laws provide a detailed list of stalking behaviour and a general catch-all provision of ‘acting in any other way that could reasonably be expected to cause physical or mental harm to the victim, including self-harm or to arouse apprehension or fear in the victim for his or her own safety or that of any other person.’^[158]

5.10 Whilst the offence provision is comprehensive, it is also long and detailed. This might lead to confusion about how the offence works.

Elements of the offence of stalking

5.11 The offence of stalking requires that the accused person:

• engaged in a course of conduct that included particular types of actions; and

• had the necessary state of mind when engaged in that course of conduct.

Course of conduct

5.12 A person stalks another person if they engage in a ‘course of conduct’ that includes any of the types of acts set out in 21(A)(2) of the Crimes Act. A ‘course of conduct’ is referred to only in the Victorian and Tasmanian legislation.

5.13 The types of conduct that are included are not necessarily unlawful on their own. It is when these actions come together in a course of conduct directed to a person with a specific intent that the behaviour becomes a criminal offence.

5.14 A course of conduct is not defined in the Victorian legislation. The courts have interpreted it as a pattern of conduct showing a continuity of purpose in relation to the victim. At a minimum it requires the acts to have been committed on more than one occasion or to have been protracted in nature.^[159]

5.15 In Tasmania, a person is said to pursue a course of conduct if the conduct is sustained or the conduct occurs on more than one occasion.^[160]

5.16 In most other states and territories, the intensity and duration required for the relevant conduct is specified in the legislation without any reference to a course of conduct. The South Australian legislation refers to ‘at least two separate occasions’.^[161] In Queensland conduct must be ‘engaged in on any one occasion if the conduct is protracted or on more than one occasion’.^[162] Western Australian legislation refers to pursuing another person through a list of behaviours that occur ‘repeatedly’ (although repeated behaviour is not necessary if the conduct is in breach of a restraining order or bail condition).^[163] The requirements in these jurisdictions may be easier to understand and apply than those in Victoria.

Type of conduct covered

5.17 The legislation contains a broad list of stalking conduct. For example, following the victim and contacting the victim can be stalking acts.

5.18 Individual types of conduct are broadly described. One example is contacting the victim by telephone, fax, text message, email or other electronic means or ‘by any other means whatsoever’.^[164]

5.19 The offence also includes ‘acting in any other way’ that could ‘reasonably be expected’ to cause physical or mental harm to the victim (including self-harm) or to arouse fear or apprehension in the victim.^[165]

5.20 Technology-based stalking provisions were introduced in 2003^[166] and there have been significant technological developments since then. The capabilities of mobile phones and other personal electronic devices have expanded substantially. The provisions are broadly framed and do not specify technology types. They appear to cover new technologies and new uses of existing technologies.

The state of mind of the accused

5.21 The prosecution must prove that when the accused committed the course of conduct, he or she intended to cause physical or mental harm to the victim or to arouse apprehension or fear in the victim for their own safety or that of another person.^[167]

5.22 The three ways in which the prosecution can do this are by proving that the accused:

• actually intended to cause apprehension or fear;^[168] or

• knew that engaging in a course of conduct of that kind would be likely to cause harm, or arouse apprehension or fear;^[169] or

• ought to have understood, in all the circumstances, that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and that actually happened.^[170]

5.23 The first two tests look solely at the subjective state of mind of the accused. It does not matter whether the actions of the accused did cause harm, apprehension or fear.

5.24 The third test is objective and considers what the accused should have understood and the effect the accused’s actions actually had on the victim.

Overlap between stalking and other offences

5.25 Stalking is an offence that involves repetitive or sustained behaviour. Some individual actions that make up stalking behaviour are criminal offences in their own right, others are not.

5.26 Behaviour that constitutes stalking can overlap with a range of other individual offences. They include breach of an intervention order, property crimes, assault and sexual assault. This overlap makes it difficult to consistently respond to stalking behaviour and identify the prevalence of stalking in criminal courts.

5.27 Stalking may not be charged in the first place, for various reasons, such as:

• There are difficulties gathering evidence.

• Charges are filed for lesser offences that require only one-off behaviour.^[171]

• Police may make incident reports or arrest for lower level offences, such as harassment, or threats, rather than stalking.^[172]

• When stalking occurs alongside more serious offences, only the serious offences may be prosecuted.

• Where stalking charges are filed, they may not always be prosecuted, for example, because they are withdrawn as part of a negotiated guilty plea.

5.28 There may be several reasons for charging other offences instead of stalking:

• The person being stalked might report only one incident and it may not be clear that it is part of a wider pattern of behaviour.

• It might be easier to prove a more straightforward offence rather than stalking which requires proof of a ‘course of conduct’.

• The elements of the offence of stalking may not be clearly understood.

5.29 People experiencing stalking might want the stalking to be recognised by the criminal process. If an accused is not charged with stalking it might be traumatic for the person who was stalked.

5.30 Stalking might also have a higher maximum penalty than alternative criminal charges. The harm of stalking needs to be reflected in charges and sentencing.

5.31 For reasons including those discussed above, statistics about the actual conviction rate for the state offence of stalking are a poor guide to the actual prevalence of stalking-type behaviour in the community.

5.32 Victoria’s stalking laws also overlap with a number of Commonwealth offences. Commonwealth offences include, for example, using the postal service^[173] or a carriage service (such as a fixed or mobile telephone service, an internet service, or an intranet service)^[174] to menace, harass or cause offence. Stalking conduct that involves mailing items or letters, making telephone calls or sending emails or other electronic messages could be charged as an offence under Commonwealth laws. (See Chapter 8 for further discussion of Commonwealth offences relating to cyberstalking).

Criminal procedure and protection of victim survivors

5.33 It is important that court processes are safe for people who experience stalking, do not further traumatise them, and do not give accused persons new opportunities to cause harm.

5.34 Changes have been made to criminal procedure to better protect victims of serious crimes against the person. The changes have focussed on family violence and sexual offences. For people that have experienced stalking by non-family members, there are few protections in place.

5.35 This lack of protection is particularly concerning as the court process can become an extension of the stalking activity. This may act as a disincentive for victim survivors to engage with the criminal justice system, and cause further fear and harm to those victim survivors who do.

Prohibition against cross-examination

5.36 In family violence and sexual offence proceedings, protected witnesses cannot be cross-examined by the accused in person.^[175] If the accused is unable to obtain a lawyer for cross-examination, Victoria Legal Aid can be ordered to provide one.^[176]

5.37 A protected witness is the complainant, a family member of the complainant, a family member of the accused, or any other witness whom the court declares to be a protected witness.^[177]

5.38 This protection does not apply in non-family violence stalking matters.

Alternative arrangements for giving evidence

5.39 The court may direct alternative arrangements to be made for witnesses in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, family violence offence or certain other offences.^[178] It does not apply to non-family violence stalking.

5.40 The alternative arrangements include:

• permitting evidence to be given at a place other than the courtroom by closed circuit television or other facilities

• using screens to shield the witness

• permitting a support person to sit with the witness for emotional support

• permitting only persons specified by the court to be present while evidence is being given

• requiring legal practitioners not to wear robes

• requiring legal practitioners to be seated while cross-examining.^[179]

Pre-recording of evidence-in-chief

5.41 Witnesses who are children or who have a cognitive impairment can give evidence-in-chief by Video Audio Recording of Evidence (VARE) in certain proceedings.^[180] The evidence-in-chief is filmed before the court proceedings and the recording is played in court.

5.42 A broader range of proceedings are covered by this provision. They include those relating to a sexual offence, family violence offence or an indictable offence which involves an assault on, or injury or a threat of injury to a person.^[181] This last category includes stalking.^[182]

Broadening the scope of witness protections

5.43 The Commission considered the protections available for witnesses in its 2016 report

The Role of Victims of Crime in the Criminal Trial Process. The Commission recommended that protective procedures for witnesses should be available to protected victims rather than to particular categories of offences or types of victims (other than children).

5.44 The Commission made the following recommendation:

The Criminal Procedure Act 2009 (Vic) should be amended to include a definition of protected victim. A protected victim should be defined as a victim who is likely to suffer severe emotional trauma or be so intimidated or distressed as to be unable to give evidence or give evidence fairly.

Factors relevant to determining whether a victim is a protected victim should include:

(a) the nature of the offending perpetrated against the victim

(b) the victim’s relationship with the accused

(c) the subject matter of the evidence the victim is expected to give

(d) the victim’s views

(e) and any other factor the court considers relevant.^[183]

How stalking is sentenced in Victoria

5.45 A judge or magistrate sentences an accused person after they have pleaded guilty or been found guilty of a crime. Sentences can include imprisonment, community corrections orders, fines, or formal warnings.

5.46 To decide on the appropriate sentence, the judge or magistrate weighs up factors including:

• whether the person pleads guilty (and when)

• the maximum penalty

• the type of offence

• whether the crime was motivated by hatred or prejudice

• any mitigating and aggravating factors

• the impact of the offence on the victim survivor.^[184]

5.47 The maximum penalty for stalking in Victoria is 10 years imprisonment.^[185] If the offence is tried in the Magistrates’ Court, the maximum penalty that can be imposed is two years imprisonment.^[186]

5.48 The Sentencing Advisory Council is researching sentencing trends for stalking offences and breaches of PSIOs, FVIOs and FVSNs in Victoria. The outcomes of its research will be discussed in our final report.

Sentencing and risk assessment

5.49 Some sentencing principles relate to risk of future harm. The judge or magistrate must consider how to:

• deter the person or other people from committing the same or similar offences

• rehabilitate the person

• protect the community.

5.50 Sometimes magistrates or judges are provided with reports from psychologists, drug and alcohol workers and other health professionals. These reports are meant to help the magistrate or judge decide if the person is likely to reoffend. These reports can be provided by the prosecution or the defence.

5.51 Expert evidence about ‘risk’ is an emerging field and the quality of assessments is variable. Stalking is a specialist area of psychology, and a general psychological report may not meet the needs of the court for the purposes of sentencing stalking offences.^[187]

Electronic monitoring

5.52 We are considering whether electronic monitoring of people who commit stalking and are assessed as being at a high risk of reoffending could assist with protecting the community.

5.53 A person who is being 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. 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 or a battery going flat. The monitoring centre determines what response is needed and who needs to follow up.

5.54 Currently electronic monitoring is used to monitor compliance with community corrections orders, parole orders and post-sentence supervision orders for some serious sexual and violent offenders. People in custody can also be subject to electronic monitoring. It is only used in Victoria after people have been convicted. It cannot be imposed as a bail condition.

5.55 Victoria’s Royal Commission into Family Violence suggested further consideration should be given to electronic monitoring as part of an overall approach to family violence. But it did not recommend changing the law.^[188]

5.56 New South Wales, Tasmania, South Australia and Western Australia have trialled electronic monitoring for people who have committed significant family violence. Queensland amended bail laws to provide for electronic monitoring as a bail condition, following evaluation.

5.57 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. In other states it is used only in the criminal law setting.

5.58 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 associated with imprisonment)

• victim survivors report an increased sense of safety.^[189]

5.59 Electronic monitoring has not been used as a case management response to non-family violence stalking in Australia. There is not enough evidence to show whether electronic monitoring would work in this context.

5.60 The use of electronic monitoring raises issues that must be considered:

• The more people that are subject to electronic monitoring, the harder it is to monitor them all intensively. This could lead to safety risks.

• Electronic monitoring is a significant incursion into civil liberties. This might not be justified for convicted persons who do not pose a risk of serious harm.

• Significant involvement of private companies in providing equipment could create a commercial incentive to push for broader use.

• ‘False alerts’ and other system deficiencies are possible.

• There is a lack of awareness of the limitations of electronic monitoring (in general public and decision-makers).

144. Crimes Act 1900 (ACT) s 35; Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13; Criminal Code 1913 (WA) s 338E; Criminal Code Act 1899 (Qld) s 359B; Criminal Code Act 1924 (Tas) s 192; Criminal Law Consolidation Act 1935 (SA) s 19AA.

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145. Criminal Procedure Act 2009 (Vic) s 28(1)(b).

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146. Sentencing Advisory Council (Vic), ‘Stalking’, SACStat Magistrates’ Court (Web Page, 31 October 2019) <https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_21A.html>; ibid.

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147. Crimes (Amendment) Act 1994 (Vic).

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148. Victoria, Parliamentary Debates, Legislative Assembly, 20 October 1994, 1384 (Geoffrey Coleman).

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149. Ibid.

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150. Crimes (Stalking) Act (2003) (Vic).

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151. Crimes Amendment (Bullying) Act 2011 (Vic).

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152. Ibid.

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153. Crimes (Stalking) Act (2003) (Vic).

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154. Troy E Mcewan, Paul E Mullen and Rachel Mackenzie, ‘Anti-Stalking Legislation in Practice: Are We Meeting Community Needs?’ (2007) 14(2) Psychiatry, Psychology and Law 207; Michelle Sibenik, ‘A Critical Analysis of the Applications of Anti-Stalking Legislation in Victoria, Australia’ (PhD Thesis, Monash University, 2018).

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155. Crimes Act 1958 (Vic) s 21A(3)(b).

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156. Victoria, Parliamentary Debates, Legislative Assembly, 20 October 1994, 1384 (Geoffrey Coleman).

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157. Crimes Act 1900 (ACT) s 35.

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158. Crimes Act 1958 (Vic) s 21A(2)(g).

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159. Gunes v Pearson (1996) 89 A Crim R 297, 306, (Supreme Court of Victoria, McDonald J, 31 October 1996) 51.

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160. Criminal Code Act 1924 (Tas) s 192.

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161. Criminal Law Consolidation Act 1935 (SA) s 19AA.

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162. Criminal Code Act 1899 (Qld) s 359B.

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163. Criminal Code Act Compilation Act 1913 (WA) s 338E.

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164. Crimes Act 1958 (Vic) s 21A(2)(b).

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165. Ibid s 21A(2)(g); Crimes Act 1958 (Vic).

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166. Crimes Act 1958 (Vic) s 21A(ba)-(bc).

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167. Ibid s 21A(2).

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168. Ibid.

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169. Ibid s 21A(3)(a).

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170. Ibid s 21A(3)(b).

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171. Leana A Bouffard et al, ‘Still in the Shadows: The Unresponsiveness of Stalking Prosecution Rates to Increased Legislative Attention’ (2021) 73 Journal of Criminal Justice 101794: 1–10.

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172. Patrick Q Brady and Matt R Nobles, ‘The Dark Figure of Stalking—Examining Law Enforcement Response’ (2017) 32(20) Journal of Interpersonal Violence 3149.

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173. Criminal Code Act 1995 (Cth) s 471.12.

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174. Ibid s 474.17.

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175. Criminal Procedure Act 2009 (Vic) s 356.

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176. Ibid s 357.

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177. Ibid s 354.

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178. Ibid s 359.

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179. Ibid s 360.

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180. Ibid s 367.

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181. Ibid s 366.

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182. R v Anders [2009] VSCA 7, (2009) 20 VR 596.

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183. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) xxvi

     <https://www.lawreform.vic.gov.au/>.

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184. Sentencing Act 1991 (Vic) s 5(2).

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185. Crimes Act 1958 (Vic) s 21A.

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186. Sentencing Act 1991 (Vic) s 113.

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187. Troy E McEwan et al, ‘The Reliability and Predictive Validity of the Stalking Risk Profile’ (2018) 25(2) Assessment 259.

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188. Royal Commission into Family Violence, Summary and Recommendations (Report, March 2016) <https://www.parliament.vic.gov.au/file_uploads/1a_RFV_112ppA4_SummaryRecommendations.WEB_DXQyLhqv.pdf>.

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189. Heather Nancarrow and Tanya Modini, ‘Electronic Monitoring in the Context of Domestic and Family Violence: Report for the Queensland Department of Justice and Attorney-General’ (ANROWS Australia’s National Research Organisation for Women’s Safety, 2018).

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