Yes. Stalking is a criminal offence in Western Australia and is prosecuted under section 338E of the Criminal Code Act Compilation Act 1913 (WA). It applies when a person pursues another with intent to intimidate, where “intimidate” includes causing physical or mental harm, inducing fear, or interfering with lawful actions.
“A person who pursues another person with intent to intimidate that person or a third person commits a crime.” – Criminal Code Act Compilation Act 1913 (WA), s 338E(1)
Key Elements of the Offence
- Pursuit: Includes persistent physical following or technology-enabled harassment (e.g., texts, social media)
- Intent: Must demonstrate purposefully causing intimidation
- Intimidation: Defined as harm, fear, or interference with lawful activities
1. Pursuit
The term “pursue” is defined in section 338E(2) and includes a wide range of conduct, such as:
- Repeatedly following or contacting someone
- Sending unwanted messages (texts, emails, social media)
- Loitering near the person’s home, workplace, or usual places
- Using surveillance devices or tracking technologies
2. Intimidation
According to the same section, “intimidate” means causing:
- Physical or mental harm
- Apprehension or fear
- Hindrance of lawful activity
- Compulsion to act against one’s will
3. Intent
The law requires proof of intent to intimidate—not just reckless or careless behaviour. Courts assess:
- Subjective intent: The accused must have aimed to intimidate
- Objective context: Whether the conduct would reasonably be considered intimidating
- Persistent behaviour: Patterns—especially where conduct continues after being told to stop—can support a finding of intent
“It is not necessary to prove that the person was actually intimidated… it is sufficient to prove that the person intended to intimidate.” – s 338E(1)
Legal Process and Penalties for Stalking Charges
If you are charged with stalking under section 338E, the legal process and consequences will depend on how the charge is prosecuted.
Legal Process
- Initial Charge: Police may arrest you or issue a summons depending on the severity.
- Either-way Offence: The matter can be dealt with in the Magistrates Court or District Court, depending on aggravating factors.
- Court Appearances: You will be required to attend a first mention to enter a plea. Bail may include no-contact conditions.
Penalties if Convicted
| Offence | Court | Maximum Penalty |
|---|---|---|
| Standard Stalking | Magistrates Court | 18 months imprisonment or $18,000 fine |
| District Court | 3 years imprisonment | |
| Aggravated Stalking (e.g., use of weapon, breach of restraining order, victim vulnerability) |
Magistrates Court | 2 years imprisonment or $24,000 fine |
| District Court | 8 years imprisonment | |
| Related Lesser Offence (s 338D) | 12 months imprisonment or $12,000 fine | |
Aggravating circumstances are outlined in s 338E(3), including if the offence is committed with a weapon, in breach of a restraining order, or against a child or vulnerable person.
Burden of Proof
To secure a conviction under section 338E, the prosecution must prove—beyond reasonable doubt—that:
- You pursued the alleged victim as defined under the Act
- Your intent was to intimidate
- The conduct involved a course of repeated behaviour
Evidence may include:
- Continued unwanted communication after requests to stop
- Patterns of surveillance or loitering
- Direct or implied threats in messages
Actual harm is not required. The offence is complete once the intentional pursuit with intimidatory purpose is proven.
Example Case for the Crime of Stalking: Siriphanuruk v The State of Western Australia [2021] WASCA 221
Application of Section 338E – Stalking under the Criminal Code (WA)
This case explores the serious nature of stalking under section 338E of the Criminal Code (WA), particularly in the context of digital harassment and prolonged psychological abuse. The Court of Appeal’s decision in Siriphanuruk v The State of Western Australia highlights how modern stalking offences often involve technology, impersonation, and targeted threats, and confirms that such conduct can attract significant terms of imprisonment.
Background
- Charge: Ms Siriphanuruk was convicted of two counts of stalking, among other offences. The stalking charges were brought under section 338E of the Criminal Code (WA).
- Defence Argument: She appealed the total length of her sentence, arguing that the penalties imposed—particularly for the stalking charges—were excessive in light of her personal circumstances and medical condition.
- Key Context:
- Over approximately eight months, the appellant carried out a sustained campaign of stalking against three victims: a former partner (RJ), his wife (A), and their 12–13-year-old daughter (R).
- She used multiple fake identities and email accounts to send hundreds of threatening and abusive messages. These included rape threats, death threats, and details of the family’s daily activities, leading the victims to believe they were being closely watched.
- The conduct caused severe psychological distress and fear, particularly because of the persistent threats of harm directed at the child.
Court’s Findings
The Court of Appeal upheld the conviction and sentence, and made the following key findings relevant to the stalking offences:
- The stalking offences were described as grave examples of section 338E conduct. The court noted that they sat at the “top end of the range of seriousness” for this offence category.
- The prolonged nature of the conduct, combined with its calculated and menacing tone, elevated the seriousness of the offending. The messages were not isolated but continuous, offensive, and designed to intimidate and control the victims.
- The use of technology—including fake emails and online impersonation—demonstrated planning and premeditation, aggravating the offending.
- The court rejected any moderation of sentence due to the appellant’s health, parental status, or lack of prior convictions, stating that general deterrence was paramount for conduct of this nature.
- The sentence of 2 years’ immediate imprisonment for the lead stalking charge was upheld and found not to be manifestly excessive.
Legal Principles Highlighted
This case clarifies and reinforces how section 338E of the Criminal Code (WA) operates in serious stalking matters:
- Expanded Understanding of Stalking: The provision captures conduct that causes physical or mental harm, or arouses fear or apprehension, particularly when it is persistent and directed at more than one victim.
- Digital Conduct Falls Within Scope: Use of electronic communications—emails, fake identities, impersonation—is squarely within the definition of stalking under s 338E.
- Aggravating Factors: Where threats target a child or extend to a victim’s family, the offending will be viewed as more serious. Sustained and intrusive behaviour will attract higher penalties.
- Deterrence and Denunciation: Courts will prioritise community protection and deterrence in sentencing stalkers, especially when there is evidence of planning, cruelty, and long-term impact.
Significance of the Case
Siriphanuruk serves as a significant authority on the application of section 338E to technologically facilitated stalking. It confirms that stalking is not limited to physical surveillance or proximity, and that psychological harm and coercion through electronic means are equally serious under the law. The decision reflects the court’s firm stance on denouncing digital abuse, especially when it involves threats to children, and sets a strong precedent for custodial sentences in similar cases.
Key Takeaways
Stalking is a serious offence under section 338E of the Criminal Code Act Compilation Act 1913 (WA). The law captures a wide range of conduct, including repeated messages, surveillance, and digital impersonation, provided there is intent to intimidate. Actual harm does not need to occur—what matters is the accused’s purpose and pattern of behaviour.
Penalties are significant, particularly where aggravating factors are present. As confirmed in Siriphanuruk v The State of Western Australia, courts take a firm stance on stalking offences, especially when they involve technology and ongoing psychological harm.
