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Week 8 - Stalking

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Queensland University of Technology

Unlawful Stalking Definition/Punishment: WRITE: Unlawful Stalking (crime) is defined in s359B CC and involves conduct intentionally directed at a person; and engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and involves 1 or more or several acts defined is s359B(c) that causes either of the effects defined in s359B(d), and is punished/created in s359E by 5 years imprisonment unless aggravated in s359E(3). N.B. can be tried summarily: s552B(j)(5) and s552D CC. Discuss Aggravation if Applicable: Aggravated Stalking: S359E(3): Punished by 7 years imprisonment if: (a) uses or intentionally threatens to use, violence against anyone or anyone’s property; or (b) possesses a weapon within the meaning of the Weapons Act 1990; or (c) contravenes or intentionally threatens to contravene an injunction or order imposed or made by a court or tribunal under a law of the Cth or State. 359B What is unlawful stalking “Unlawful stalking” is conduct— (a) intentionally directed at a person (the “stalked person”); and (b) engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and (c) consisting of 1 or more acts of the following, or a similar, type— and (d) that— (i) would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or (ii) causes detriment, reasonably arising in all the circumstances, to the stalked person or another person. Has [accused] committed stalking? 1. Was [accused]’s conduct intentionally directed at [victim]? WRITE: Here [accused] has… [list acts] these acts are clearly intentionally directed at [victim] because … [facts]: s359B(a). Immaterial whether: • Stalker intends the stalked person to be aware that the conduct is directed at the them: s359C(1)(a) • Stalker has a mistaken belief about the identity of the stalked person: s359C(1)(b) • The conduct directed at the stalked person consists of conduct carried out in relation to another person or property of another person: s359C(2) 2. Has [accused] engaged in conduct on more than 1 occasion or protracted? WRITE: Here [accused] has… [facts] this would be [conduct on more than 1 occasion/ 1 protracted occasion]: s359B(b). Immaterial whether: • Conduct consists of the same or different acts: s359C(3) CASES: C v H: even though letter protracted over two pages not amount to protracted occasion; Held: Delivering 2 letters over 3 days not protracted conduct, but conduct on more than one occasion. Gunes v Pearson: one protracted occasion is sufficient. 3. Does [accused]’s conduct consist of one or more acts in s359B(c)? WRITE: [State accused’s act and link to section of the statute, add a case if applicable]. e.g. Act 1: [facts relating to the 1 act] falls within definition in s359B (c) (i) because … [apply]. Act 2: … N.B. ‘Property of a person’ is defined as property that the stalked person has an interest in, even if the stalker has an interest in the property: s359A (i) used and enjoyed by the stalked person; or (ii) available for the stalked person’s use or enjoyment; or (iii) in the stalked person’s care or custody; or (iv) at the promises at which the stalked person is residing STATUTE: s359B (C) (i) following, loitering near, watching or approaching a person; (ii) contacting a person in any way, including, for example, by telephone, mail, fax, e-mail or through the use of any technology; (iii) loitering near, watching, approaching or entering a place where a person lives, works or visits; (iv) leaving offensive material where it will be found by, given to or brought to the attention of, a person; (v) giving offensive material to a person, directly or indirectly; (vi) an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence; (vii) an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; CASES: • La Spina: Note left on car windscreen notifying parents that daughter was not a virgin. • Grice: Searching school bag, collecting hair, licking apple and sniffing crotch of pants • Brown: Killing plants • Gibson: Searching through rubbish bin. • Cook: Obscene phone calls • Kyriakou: Following home on 4 occasions • Ali: 150 acts; including deliberately making loud noises by banging on fence, used power tools close to boundary, used lawn mower close to boundary, lit fire
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