Understanding the Law on Stalking and Intimidation in NSW

By Sahar Adatia and Jimmy Singh.

 

On 8 January 2019, reality television star Rob Kerr from the hit series Bondi Rescue was charged after allegedly sending his ex-girlfriend a succession of text messages threatening to harm her.

Mr Kerr, 51, was arrested at his home in the eastern suburbs of Sydney, accused of threatening to seriously harm and stalk his former partner, Malin Hylland, between 3 and 4 January.

The lifeguard, known to viewers as Kerrbox, was taken to Waverly Police Station, following which he was charged with stalking or intimidation with intent to cause fear of physical harm.

He was also hit with an apprehended domestic violence order.

It is believed Ms Hylland and the former professional surfer were together for three years and separated in 2018.

Mr Kerr became popular onscreen for his camaraderie with other cast members on Bondi Rescue and clocked up more than two decades as a professional lifeguard in the aftermath of his surfing career.

Kerr Appears in Court Frail

On 10 January, the former lifeguard appeared frail at his first attendance at Waverly Local Court.

He wore dark sunglasses and was edged by his legal team as he entered the court to answer police allegations of intimidating his ex-partner.

Along with his lawyers, he was also supported by a family member.

Ms Hylland also appeared at court, attending alone.

It is alleged that following the couple’s break-up in 2018, around 40 messages were sent over two days of 3 and 4 January.

Both the Bondi personality and his ex-partner refused to comment.

Kerr, who rose to prominence on the reality television show, is expected to return to court later this month.

What is “Stalking” and “Intimidation”?

Intimidation is defined within section 7 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Intimidation, under the law is understood to include conduct amounting to harassment, molestation. It includes actions of approaching someone in a manner that causes fear of safety (via text messages, calling, emails or other technological means).

Intimidation also includes anything that causes someone ‘reasonable apprehension’ of violence, injury or damage. This could be in relation to a person, or an item or thing belonging to the person.

Intimidation can occur from conduct or words.

On the other hand, stalking is defined within section 8 of the same Act, and includes watching, approaching or frequenting someone’s work, business, home or place where he/she simply hangs out frequently.

Even the accused person’s past un-related stalking or intimidating behaviour can be used as evidence in court to prove the new/current allegation of stalking or intimidating conduct under section 7 and section 8 of the same Act.

A person accused of stalking or intimidating under section 13 Crimes (Domestic and Personal Violence) Act 2007 (NSW) can be guilty of this even in circumstances the victim didn’t fear a physical or mental harm from your conduct.

To be guilty of either stalking or intimidating in NSW, the prosecution is first required to prove that:

  1. Your actions under the law fits in the meaning of ‘stalking’ or ‘intimidating’ conduct; and
  2. You intended to cause the victim to fear either physical or mental harm, or you knew that your conduct was likely to cause such fear; and
  3. The victim is someone who you currently have or had a domestic relationship with.

Where an accused person doesn’t expressly admit that he/she intended to cause the victim to have the requisite fear at the time of his/her actions, the courts often turn to considering the surrounding evidential circumstances of the case to determine if it allows for an inference to be made as to his/her state of mind.

For an outline on what a domestic relationship is, see our previous blog on the law on stalking and intimidating charges.

What is the Penalty for Stalking or Intimidating in NSW?

The offence of stalking or intimidating someone in NSW attracts heavy penalties.

Anyone guilty of this will face a penalty of up to 5-years jail and/or a fine of up to $5,500. This is reflected in s13 of the same Act.

It must be noted that simply attempting to commit the offence of stalking or intimidation is also considered to be an offence. Here, the penalties are the same as if the offence was actually committed.

Victims of Stalking

NSW Police advise that stalking can involve threats or sexual innuendo. It includes situations where the stalker generally attempts to intimidate or induce fear in the person he/she are stalking.

The person being stalked may only realise he/she is being stalked once he/she identifies a pattern of unusual or suspicious incidents occurring.

Some examples include:

  • Verbally threatening somebody in person
  • Sending a person repeated or unwanted phone text messages or Facebook messages
  • Watching a person’s house
  • Recurrently phoning a person at their workplace
  • Continuously turning up at a person’s gym
  • Leaving strange or unwanted gifts at someone’s home
  • Continually staring or gesturing.

Often, the person being stalked can develop a sense of a loss of control over his/her life and can ultimately be forced into changing his/her routine, movements and behaviours.

According to recommendations from NSW Police, victims of stalking need to understand that they are not responsible for the behaviours of the stalker and that they should not be blamed in any way.

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