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Criminal Law

Stalking Offences in WA

The offence of stalking or intimidation in Western Australia can result in serious criminal consequences.

Here’s what you need to know about the offence of stalking in WA, the resulting penalties and possible defences available if you have been accused of this conduct.

 

The Western Australian Offence of Stalking

The offence of stalking is outlined under section 338E of the WA Criminal Code, which states that “a person who pursues another person with intent to intimidate that person or a third person, is guilty of a crime”.

To ‘intimidate’ is defined under the Code as:

  • to cause physical or mental harm to the person;
  • to cause apprehension or fear in the person;
  • to prevent the person from doing an act that the person is lawfully entitled to do, or to hinder the person in doing such an act;
  • to compel the person to do an act that the person is lawfully entitled to abstain from doing.

To ‘pursue’ is defined under the Code as:

  • to repeatedly communicate with the person, whether directly or indirectly and whether in words or otherwise;
  • to repeatedly follow the person;
  • to repeatedly cause the person to receive unsolicited items;
  • to watch or beset the place where the person lives or works or happens to be, or the approaches to such a place;
  • whether or not repeatedly, to do any of the preceding in breach of a restraining order or bail condition.

To decide whether an accused person has pursued another person, the Court will take into account whether an accused intended to communicate or follow a person, as well as whether an accused was aware that the place they attended was known to be the other person’s address or work.

A lesser offence exists under this section for a person who pursues another person in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, that person or a third person.

This offence does not require proof of intention to stalk another.

An aggravated offence also exists under this section where a person stalks another in ‘circumstances of aggravation’. These circumstances of aggravation, include where:

  • immediately before, during, or immediately after the commission of the offence, the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed; or
  • the conduct of the offender in committing the offence constituted a breach of a condition on which bail had been granted to the offender.

 

Penalties For the Offence of Stalking in WA

For the general offence of stalking, a convicted person faces a maximum penalty of:

  • Three years imprisonment, if prosecuted as an indictable offence;
  • Eighteen months imprisonment and a fine of $18,000, if prosecuted as a summary (or simple) offence.
  • For the lesser offence of stalking without intent, a convicted person faced a maximum penalty of imprisonment for 12 months and a fine of $12,000.
  • For the aggravated offence, a convicted person faces a maximum penalty of:
  • Eight years imprisonment, if prosecuted as an indictable offence;
  • Two years imprisonment and a fine of $24,000, if prosecuted as a summary (or simple) offence.

 

Defending Against A Stalking Charge

It’s important to note that the prosecution holds the burden to prove each element of the offence charged beyond a reasonable doubt. Failure to do so will result in a finding of not guilty and an acquittal.

Defences that are raised in relation to a stalking charge might include:

  • Somebody else committed the actions alleged (misidentification);
  • The other person consented to the interactions which have been called stalking;
  • The actions do not constitute intimidation or indicate an attempt to pursue another person.
  • There was no intention to intimidate or pursue (for the general and aggravated offences);
  • Circumstances of aggravation do not exist (for the aggravated offence);
  • A formal legal defence applies, including either duress, necessity or self-defence.

If the defence is not successful in avoiding a conviction, your criminal lawyer can put forward a strong plea in mitigation ensuring you receive the lowest penalty possible, including in many circumstances, the avoidance of a term of imprisonment.

 

What's Next?

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I am here to guide you through this difficult chapter of your life and work towards achieving the best results for your case.

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