Certain threats and intimidation are considered to be serious criminal offences.
For each of those offences, the prosecution must prove certain matters beyond reasonable doubt.
Here’s what you need to know.
The offence of staking or intimidation in NSW
Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 outlines an offence of stalking or intimidating another with the intention of causing the person to fear physical or mental harm. This offence carries a maximum penalty of 5 years imprisonment and/or a fine of $5,500.
- Following the other person about
- Watching or frequenting the person’s residence, work, business, or any place the other person frequents for social or leisure activities, and
- Contacting the other person through the internet or other technological means
- Conduct amounting to harassment or molestation
- Approaching the other person by any means including phone, SMS and email in order to make them fear for their safety
- Conduct causing the other person to apprehend violence or damage to themselves or their property, and
- Conduct causing a person with whom you have a domestic relationship to apprehend being injured
To establish the offence, the prosecution must prove beyond reasonable doubt that you:
- You stalked or intimidated another person, and
- You intended to cause the other person to fear physical or mental harm.
Whether the chosen target actually felt fear of physical or mental harm is irrelevant. That a person intended to cause fear is sufficient.
The offence of using a carries service to menace, harass or cause offence
Section 474.17 of the Criminal Code Act 1995 – which applies across Australia – prescribes a maximum penalty of 3 years in prison for using a ‘carriage service’ – such as phone or internet – in a way that a reasonable person would regard as menacing, harassing or offence.
“Harassing” is not defined in the Act. However, acts deemed as “menaces” are defined under section 138.2 as including:
- A threat (whether express or implied) of conduct that is detrimental or unpleasant to another person;
- A general threat of detrimental or unpleasant conduct that is implied because of the status, office or position of the maker of the threat.
“Offensive” is a broad term. Section 473.4 of the Act states that in determining whether material is offensive, reference is to be had to:
- the standards of morality, decency and propriety generally accepted by reasonable adults; and
- the literary, artistic or educational merit (if any) of the material; and
- the general character of the material (including whether it is of a medical, legal or scientific character).
Further offences under the Code extend to intimidating conduct via the postal service.
The offence of documents containing threats
Section 31 of the Crimes Act 1900, outlines an offence where a person intentionally or recklessly sends or delivers, or directly or indirectly causes to be received, any document threatening to kill or inflict bodily harm on any person, knowing its contents.
The offence carries a maximum penalty of 10 years imprisonment.
- a letter that you wrote containing a threat of death, injury or physical violence to the recipient, or
- a letter that you wrote threatening death, injury or physical violence to someone other than the recipient, or
- a letter that another person wrote knowing that it contains a threat of death, injury or physical violence.
The offence can be established despite the letter not being received or read by the intended recipient.
So, for example, the offence can be proved despite the letter being seized by Australia Post, or handed-over to police by someone other than the intended recipient, or given by the intended recipient to police without having opened or read it.
The offence of common assault
Section 61 of the Crimes Act 1900 (NSW) is titled ‘Common assault prosecuted by indictment’ and states that:
‘Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.’
A common assault would normally occur if you walked up to someone and threatened to hurt them, for example to punch, hit or kick them or gestured to do so.
However, the threat of harm would need to be ‘imminent’. This means that a threat to hurt some at a later time would not amount to common assault eg ‘I’m gonna bash you someday’ or ‘you better watch your back mate’.
Charged with threatening or intimidating someone?
If you are going to court for an intimidation charge, call us anytime on 9261 8881 to arrange a free first conference where one of our experienced criminal defence lawyers can advise you of your options and the best way forward.