Intimidate is defined in the Oxford dictionary as to “frighten or overawe (someone), especially in order to make them do what one wants”. However, in this modern age of smartphones and cyber bullying, the act of intimidation can be so much more than simply a physical act between two people where one makes the other do what they want.
So is intimidation a crime just under the Crimes Act (NSW)? Has the law kept up with the many ways one can be intimidated by another?
Is intimidation a crime under the Racial Discrimination Act 1975 (Cth)?
Diversity in ethnicity and nationalities can create a breeding ground for racially offensive behaviour. Under section 18C of the Racial Discrimination Act 1975 (Cth) such racial vilification is prohibited. This can include intimidating someone or a group of people on the basis of race, colour, nationality or ethnicity whether it is in person, through cyber bullying or over the phone.
However, whilst this act is unlawful under the Racial Discrimination Act it does not amount to a criminal offence. You cannot be criminally charged under this act for such behaviour and you cannot face a criminal conviction.
Is intimidation a crime under the Crimes Act (NSW)?
Under the Crimes Act (NSW) if you have engaged in intimidating behaviour, which can be behaviour that frightens another into doing or omitting to do something, you could be charged with one of the following offences, depending on the circumstances:
- Assault – common assault (s61); assault at schools (60E), other assault offences such as assaulting a police officer (s60).
- Intimidation or annoyance by violence or otherwise (s545B).
- Knowingly joining in unlawful assembly (s545C).
- Threatening or intimidating victims or witnesses (s315A).
An assault is defined under the Crimes Act as any act that involves touching another person or putting them in fear for their safety. The act of intimidation in essence involves an element of fear and so you could be charged with common assault. This could see you convicted and facing a penalty of up to 2 years in prison. Depending on the seriousness of the intimidation, it is frequently dealt with by way of good behaviour bonds or community service orders or suspended sentences.
Interestingly, the Crimes Act has addressed the modern day problem of bullying in schools to a large extent by having a criminal offence for assault in schools. Under s60E any person who intimidates any school student or member of staff can be convicted for assault in schools which faces a higher penalty of 5 years in prison.
Also, if you intimidate a police officer in the line of duty you could also face a criminal offence of assaulting a police officer which has a higher possible penalty of 5 years in prison or 7 years’ imprisonment if the intimidation occurs during a public riot or protest.
Intimidating another by violence
Under s545B of the Crimes Act there is an offence of intimidating or annoying another “by violence or otherwise”. This means if you intimidate another person to do an act or refrain from doing an act which they have a legal right to do (or not do) you can face conviction in the local court and a maximum penalty of 2 years in prison. In this section, intimidation is defined as the “causing of a reasonable apprehension of injury to a person or to any member of his family or to any of his dependants, or of violence or damage to any person or property”.
So if you use a social network to intimidate a person or a member of their family, such as their daughter, with the intended consequence of forcing a person to take a particular action or to refrain from doing so, then you may be committing an offence.
It’s important to understand that neither common assault nor intimidation require a physical act of violence to occur in order to amount to an offence in NSW – behaving in a way that causes fear can often suffice.
The law has also recognised intimidation in numbers. Under s545C of the Crimes Act, anyone who joins in an unlawful assembly could face a maximum penalty of 6 months in prison. Unlawful assembly is defined to mean a gathering of 5 or more persons whose purpose is to intimidate another person to do something or not do something.
Intimidating victims or witnesses
Intimidating victims or witnesses is a criminal offence subject to a penalty of 7 years in prison. It is taken very seriously. In addition, it is also often a condition of bail not to intimidate any witnesses or the complainant. You can face waiting for your trial or hearing in custody if you seriously breach this condition.
Also, if the victim or witness has been the subject of intimidating behaviour, they can apply for Apprehend Violence Order (AVO). If there is any further breach of the AVO as a result of intimidating someone that too can amount to a criminal offence.
There are many ways in which intimidation is a crime. Whether behaviour occurs in a physical location, or takes place via the internet or a smartphone, it could amount to a criminal offence if it forces the other person, out of fear, to do or abstain from doing something they are entitled to do.