It would come as no surprise to you that it is an offence to stalk another person. Stalking is a serious offence that can generally only be dealt with in the District Court. However, what constitutes the offence and the role which social media (via text messages, chat rooms, Facebook, etc) are playing in recording what was otherwise verbal interactions is an area that parents should take particular note of.
Stalking is defined in section 359B of the Criminal Code 1899 (Qld) as conduct which is intentionally directed at the person, is either a protracted conduct on one occasion or conduct on more than one occasion which consists of acts which would cause the stalked person reasonable apprehension of fear of violence against themselves or against their property or otherwise causes detriment.
Examples of the type of conduct which may constitute the offence are:
- Following, loitering near, watching or approaching a person;
- Contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology;
- Loitering near, watching, approaching or entering a place where a person lives, works or visits;
- Leaving offensive material where it will be found, by, given to, or brought to the attention of, a person;
- Giving offensive material to a person, directly or indirectly;
- An intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;
- An act of violence, or a threat of violence, against, or against property of anyone, including the defendant. (my emphasis)
One can see from the above examples that electronic communication is no barrier to prosecution for such an offence. It could be argued that the act of posting messages on Facebook or other similar platforms where such comments are brought to the attention of the concerned person would satisfy the offence. Certainly offensive text messages or private messages on such sites would come within this ambit. In fact, such platforms, if it can be established who has indeed been the author of the communication, establishes a permanent record of the offending material.
The most recent judgment of the Court of Appeal concerning stalking, R v Henderson  QCA 146, was a trial in the District Court at Bowen concerning a number of such communications. The communication commenced upon a dating website, progressed to Facebook and text messages and occurred just over a one (1) month period. The complainant and the defendant never physically met. Following a two day trial, the appellant was convicted and sentenced to 18 months imprisonment to be released after serving five (5) months imprisonment. Both appeals against conviction and sentence were dismissed. Whilst the appellant in that matter had a previous conviction for similar conduct and a psychological report which confirmed that the appellant was in denial about the seriousness of the conduct, the Court considered that the term of imprisonment imposed, appropriately reflected the seriousness of the conduct.
The maximum penalty for stalking is five (5) years imprisonment. Further, if it is alleged that the person who has stalked another has used or intentionally threatens the use of violence against anyone or anyone’s property, possesses a weapon or contravenes an injunction or order imposed by a Court, the matter must be dealt with in the District Court and the person is liable to seven (7) years imprisonment. Accordingly, such matters ought to be considered seriously and efforts to explain that such behaviour, if complained of, may be prosecuted ought to be emphasised to youth.
The offence of stalking was only enacted into the Criminal Code 1899 (Qld) in 1999 making it a relatively recent addition. It is perhaps with the accessibility to electronic means which saw the need that an offence other than assault be included in our legislation. However at the time of the enactment, the legislation also makes clear that a number of matters are immaterial to constitute the offence, namely whether the person doing the stalking:
- Intends that the stalked person be aware the conduct is directed at the stalked person;
- Has a mistaken belief about the identity of the person at whom the conduct is intentionally directed;
- Whether the conduct was directed at a person or the property of another person;
- Is said to have consisted of conduct of the same or different types of acts;
- Intended to cause the apprehension of fear or detriment to the stalked person; and
- Whether the person doing the stalking actually caused an apprehension or fear.
Clearly, the more persistent the conduct complained of, the more serious the offensive material would become and the greater penalties which could be expected. Further, more frequent receipt of offensive material would impact upon whether a complaint is more likely to be made. As such, it is important to be cautious and that there is a general appreciation that communications via electronic mediums not merely exist online but may expose prosecution for criminal offences.