Stalking is a serious criminal offence in Victoria, carrying a maximum penalty of ten years’ imprisonment. The offence is broader than many people expect — it covers not only physical following and surveillance but a wide range of conduct including repeated contact, online behaviour, interference with property, and abusive or threatening acts, provided that conduct forms part of a pattern directed at the victim with the intention of causing harm or fear.

The offence is created by section 21A of the Crimes Act 1958 (Vic). Stalking charges arise frequently in family violence contexts but apply equally to conduct between strangers, former partners, neighbours, and colleagues.

At Angus Cameron and Partners, we regularly represent clients charged with stalking. These matters involve complex questions about what constitutes a course of conduct, the accused’s intention, and whether available defences apply. If you have been charged, obtaining legal advice early is essential.

The Offence

The offence of stalking has two complex elements. The prosecution must prove beyond reasonable doubt that:

  • the accused intentionally engaged in a course of conduct that included one or more of the types of conduct listed in section 21A(2) of the Crimes Act; and
  • the accused did so with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for their own safety or that of any other person — or knew that engaging in such conduct would be likely to cause such harm or fear, or ought to have understood this in all the circumstances and the conduct actually did have that result.

Course of Conduct

The concept of a course of conduct is central to the offence. The individual acts must amount to a pattern of conduct that shows a continuity of purpose in relation to the victim. It is not sufficient for the victim to have coincidentally been present during a series of unrelated events — the conduct must have been specifically targeted at them.

At a minimum, a course of conduct requires acts committed on more than one occasion, or a single act that is protracted in nature, such as an extended period of surveillance. However, conduct on more than one occasion is not always sufficient — something additional about the conduct or surrounding circumstances must be shown before it can be said to amount to a pattern evidencing continuity of purpose. A brief episode of harassment of short duration will not ordinarily qualify, and if the alleged acts were not premeditated, there cannot have been a continuity of purpose. The course of conduct may, however, be spread over a period of years.

Types of Conduct

The conduct that can form part of a stalking course of conduct is set out in section 21A(2) and includes:

  • following the victim or any other person;
  • contacting the victim by post, telephone, text message, email, or any other means;
  • publishing material online or by electronic communication relating to the victim, or purporting to originate from them;
  • causing an unauthorised computer function in a device owned or used by the victim — including unauthorised access to or modification of data, or impairment of electronic communication;
  • tracing the victim’s use of the internet or electronic communications;
  • entering or loitering near the victim’s home, workplace, or any other place frequented by them;
  • interfering with property in the victim’s possession;
  • making threats to the victim;
  • using abusive or offensive words to or in the presence of the victim;
  • performing or directing abusive or offensive acts in the presence of or towards the victim;
  • giving offensive material to the victim or leaving it where it will come to their attention;
  • keeping the victim under surveillance — including by photographing them or monitoring their movements using cameras or other recording equipment; and
  • acting in any other way that could reasonably be expected to cause physical or mental harm to the victim or to arouse apprehension or fear for their safety.

Individual acts on this list are not necessarily unlawful in themselves — it is their combination in a course of conduct directed at the victim with the requisite intent that constitutes the offence.

Intention

The prosecution must prove that the accused engaged in the course of conduct with the requisite intention. There are three ways in which this can be established:

  • the accused actually intended to cause physical or mental harm to the victim, or to arouse apprehension or fear for the victim’s safety;
  • the accused knew that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear; or
  • the accused ought to have understood, in all the particular circumstances, that engaging in a course of conduct of that kind would be likely to cause such harm or fear — and the conduct actually did have that result.

The first two pathways are subjective. If the accused intended or knew that harm or fear was likely, this element is satisfied regardless of whether the victim actually experienced harm or fear. The third pathway is objective — it asks what the accused, taking into account all the particular circumstances, ought to have appreciated about the effect of their actions. It also requires proof that the conduct actually did cause harm or arouse fear.

The word ‘likely’ means more probable than not. It is the course of conduct as a whole — not each individual act — that must have been committed with the requisite intention. It is also possible for an accused to be found guilty under the objective pathway even if they were so intoxicated or mentally unwell that they were unable to form the necessary subjective intent, provided a reasonable person in their position ought to have understood the likely effect of the conduct.

Mental harm for the purposes of this offence includes psychological harm and suicidal thoughts, and is not limited to medically diagnosed conditions.

Penalty

The maximum penalty for stalking is ten years’ imprisonment. In practice, the penalty imposed will depend on the nature, duration, and seriousness of the conduct, the harm caused to the victim, whether the accused has prior convictions, and their personal circumstances. For less serious matters, non-custodial outcomes may be available. For serious or prolonged stalking involving significant harm or fear, imprisonment is a real possibility.

Defences

Being charged with stalking does not mean you are guilty. There are several defences which may be available depending on the circumstances of your matter.

Lack of malice

It is a defence to prove that the course of conduct was engaged in without malice in the normal course of a lawful business, trade, profession, or enterprise — including journalism — or for the purpose of an industrial dispute, or for the purpose of engaging in political activities, discussion, or communication on public affairs. The accused bears the onus of establishing this defence, likely on the balance of probabilities.

No course of conduct

Where the acts alleged do not amount to a pattern of conduct showing a continuity of purpose in relation to the victim — because they were isolated, unrelated, not specifically targeted at the victim, or not premeditated — the first element of the offence may not be established.

No intention or knowledge

Where the prosecution relies on the subjective pathways to intention, a defence may arise if the accused did not in fact intend to cause harm or fear and did not know their conduct was likely to do so. This requires careful analysis of the evidence about the accused’s state of mind.

Insufficient evidence

The prosecution must prove its case beyond reasonable doubt. In many stalking matters, the evidence is complex and contested. Where the prosecution cannot establish the elements of the offence to the required standard, the charge cannot succeed.

FAQs

What is a course of conduct?

A course of conduct is a pattern of behaviour showing a continuity of purpose in relation to the victim. At a minimum, it requires conduct on more than one occasion, or a single protracted act such as extended surveillance. However, conduct on more than one occasion is not always sufficient — something additional must be shown to establish a pattern with continuity of purpose. A brief or isolated incident will not ordinarily qualify.

Can I be charged with stalking for sending repeated messages?

Yes. Repeated contact by text message, email, or any other electronic means can form part of a stalking course of conduct, provided the other elements of the offence are made out including the required intention. A single message will not constitute stalking, but a pattern of unwanted contact directed at the victim with the requisite intention may.

Can online conduct constitute stalking?

Yes. Section 21A specifically covers publishing material online relating to or purporting to originate from the victim, tracing the victim’s internet use, and causing unauthorised computer functions in the victim’s devices. Cyberstalking is expressly captured by the offence.

What if I didn’t realise my conduct was causing distress?

This may be relevant but is not necessarily a complete answer. The objective pathway asks what the accused, taking into account all the particular circumstances, ought to have appreciated about the effect of their actions.

Can I be charged with both stalking and assault for the same conduct?

Yes. An accused can be charged with and convicted of both stalking and assault where the acts relied upon to establish the stalking course of conduct also constitute assault. Similarly, a person may be convicted of both stalking and burglary where a burglary forms part of the alleged stalking course of conduct.

Do I need a lawyer if I’ve been charged with stalking?

Yes. Stalking is a serious charge with a maximum penalty of ten years’ imprisonment. The legal issues involved — including what constitutes a course of conduct, how intention is established, and what defences are available — are complex. An experienced criminal lawyer can assess the strength of the prosecution’s case, identify any available defences, and ensure your matter is presented as effectively as possible.

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