Criminal Law

Stalking is a serious criminal offence in Western Australia identified by the pursuit of another person with the intent to intimidate them. The offence carries consequences that include fines or jail time. However, the burden of proof is on the prosecution, and the experienced experts at WN Legal understand what is necessary to defend these charges successfully. 

The Offence of Stalking Defined

A person who pursues another person with intent to intimidate that person or a third person is guilty of a crime known as a stalking offence. It includes:

  1. Persistent unwanted behaviour (both in person or through the use of technology) that causes distress;
  2. intimidation;
  3. fear;
  4. and potential physical or psychological harm to the victim. 

The unwanted actions continue even after the victim expresses their wish for the stalker to stop contacting them.  

Penalties for Stalking

A number of penalties exist for those convicted of the offence of stalking. These include, 

Indictable Offences 

  • If prosecuted as an indictable offence, three years in prison 
  • Eight years imprisonment if prosecuted as an aggravated indictable offence 

Summary Offences 

  • Eighteen months imprisonment and a fine of $18,000 
  • Aggravated offences carry a maximum penalty of Two years imprisonment and a fine of $24,000 

For the less severe offence of stalking without intent, a convicted individual could be sentenced to a maximum term of 12 months imprisonment and a $12,000 fine. 

Understanding the Elements of Stalking: Intimidation and Pursuit

Defining ‘intimidate’

According to Section 338E of the criminal code, “intimidate” is defined as:

  • causing physical or mental harm to a person;
  • instilling apprehension or fear in a person;
  • preventing or hindering a person from performing an act they are lawfully entitled to do;
  • compelling a person to perform an act they are lawfully entitled to abstain from doing.”

Defining ‘pursuit’

According to Section 338E of the criminal code, “pursuit” is defined as:

  • repeatedly communicating with the person, directly or indirectly, through words or other means;
  • repeatedly following the person;
  • repeatedly sending unsolicited items to the person;
  • watching or lingering around the place where the person lives, works, or frequently visits, or the approaches to such places;
  • breaching a restraining order or bail condition by doing any of the above, whether repeatedly or not.

To determine if the accused has pursued another person, the Court will consider whether the accused intended to communicate with or follow the person, and if the accused was aware that the location they attended was the person’s home or workplace.

Defending Against a Stalking Charge

If charged with stalking, remember there are several reasonable defences for the crime. So, it is essential to keep in mind that the prosecutor must present enough evidence to prove guilt. Some potential defences include, 

  1. Actions have a formal legal defence, which may include duress, necessity or self-defence;
  2.  Misidentification as though another person committed the actions alleged;
  3. The accused had no intention to intimidate or pursue the person;
  4. The actions are inconsistent with intimidation or indicate an attempt to pursue the person;
  5. The alleged victim agreed to the interactions that are now labelled stalking;
  6. There are no circumstances of aggravation.

Please contact WN Legal’s criminal defence lawyers to understand more about what you are charged with and whether you should defend your charges.

Our Criminal Defence Lawyers at WN Legal

About WN Legal

At WN Legal, we have spent more than a decade establishing ourselves as one of Perth’s most noteworthy boutique law firms. Our reputation is built on experience, success, and compassion. 

We focus on cases such as stalking and prioritise understanding our clients’ circumstances, which is crucial to achieving the best possible outcome. Over the years, our firm has ensured our clients receive respectful and fair treatment within the justice system.  

Potential clients receive a free 30-minute consultation to discuss their case. As we get to know our clients and the details of their cases, we will determine if we can assist with the case. We will be forthcoming regarding the reasons if we are unable to take on the case. 

Testimonials From Previous Clients

Kryan & Khew are extremely compassionate and professional. They are very thorough and don’t miss anything, I was super impressed with their genuine personalities while they remained professional and businesslike throughout my dealing with them. I would not hesitate to recommend my family, friends, and business clients to them.

Kate Stanley

I was recently charged with aggravated common assault. WN Legal represented me from day one till the case was finalized. They are affordable, professional, knowledgeable, and sensitive. They kept me updated on the progress of the case. Despite the seriousness of the charge the outcome was the best I could expect – a fine and spent conviction. I would recommend WN Legal for all your legal problems.

Godwin Dube

“Khew and Aimee were both so amazing and helpful, Khew ran through everything to make sure we understood everything that had to happen and how things would work. I had Aimee with me on the big day and she was super kind and made you feel so comfortable like a best friend was with you, no nerves at all! She even walked me to the car to make sure I was safe, and we came away with a positive outcome 😀 win-win defiantly recommend this company 5 stars.”

Sarah Moralee

“WN Legal are far superior to any legal firm we have dealt with before and they have set the bar so high we doubt we will ever find a legal firm as dedicated and professional.

We dealt mainly with Kyran who was readily accessible and exceeded our expectations. We also found the rest of the team at WN legal to be just as helpful, friendly, and genuine.

We highly recommend WN Legal to anyone.
If we could leave a rating higher than 5 stars we would, Mark and Marina”

Mark Schnierer

“Absolutely the best service. I was treated in a professional manner and when i was about to give up Khew turned around and said i am not ready to give up fighting for you yet. Some of the best words said to me in awhile. Thank you Khew for all your help and support i highly recommend this law firm.”

Skeeta-Marie Stuart

FAQs About Stalking

Is Stalking a Crime in Western Australia?

Stalking is a crime in Western Australia and is punishable under section 338E of the Criminal Code Act Compilation Act 1913 (WA).  

Is Stalking a Summary Offence or an Indictable Offence?

Stalking is considered an ‘either way offence’ and can be dealt with as a summary (simple) or indictable offence. Circumstances will dictate how the offence is viewed.  

For example, suppose you are arrested for stalking as a first offence, and you are not named in a protection order or violating a restraining order. In that case, you will likely be charged with stalking under the category of summary offences. However, if you violate a court order or there are aggravating circumstances, you will likely be charged with an indictable crime. 

What are the Different Forms of Stalking?

  • Repeatedly watching another person at their home, workplace, or other places they frequent. Generally, the actions are intended to cause fear
  • Persistent and unwanted communication (phone, text, e-mail, or other) or continually sending unwelcome gifts
  • Continuously following another person
  • Breaching a restraining order 

What Does Law Enforcement Need to Prove an Offence of Stalking?

  1. Prove that the accused had every intention of intimidating their victim
  2. Prove that the accused pursued the victim
  3. Prove that the accused person repeatedly followed their victim 

Additionally, intent is a vital element the prosecution has to prove if you’re charged with stalking. Stalker actions that would make any reasonable person fear for their safety may not qualify as legal stalking unless your goal is to threaten. 

Will an Offence of Stalking Show Up on a Criminal History Check?

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

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