On March 4, 2022, the Sentencing Advisory Council for the State of Victoria, released a report entitled: Sentencing Stalking in Victoria. The report “provides an in-depth analysis of how Victorian courts sentence stalking offences contrary to section 21A of the Crimes Act 1958 (Vic). It considers the demographics of stalkers, the relationship between stalking offenders and victims, the sorts of stalking behaviours sentenced in Victorian courts and the sentencing outcomes for stalking offences. It also explores the link between stalking and family violence, the rate of reoffending among stalking offenders and the prevalence of stalking offences in rural and regional Victoria”.
The report notes that “[b]ased on a review of sentencing remarks in the higher courts, there are a number of aggravating factors that courts frequently take into account when sentencing stalking offences. These tend to align with the features forensic psychologists and criminologists have identified as being associated with more serious harms arising from stalking. They include family violence, stalking over a long duration, very intense stalking behaviours, and stalking associated with, or that appears to be leading up to, physical violence. Conversely, mental illness and neurodisability were common mitigating factors” (at paragraph 3).
The report also noted that the “most common stalking behaviour recorded by police was contacting another person: if sentencing remarks in the higher courts are an indicator, this often involves former intimate partners sending hundreds of messages and/or making hundreds of phone calls over a brief period at the end of a relationship. And while half of all recorded stalking offences lasted one week or less (12,446 recorded offences) there were nevertheless 4,881 stalking offences that lasted longer than 12 weeks” (at page 4).
The report found that the “offence occurred in a highly gendered context, with 87% of recorded stalkers being male, and 80% of recorded victims being female. This is consistent with the extremely high rate of family violence stalking: 52% of stalking offences are recorded as occurring in a family violence context, and over half of all recorded stalkers are either the current (11%) or the former (42%) intimate partner of the victim” (at page 4).
Types of Stalkers:
The report categorized “stalkers” into five groups (at pages 23 to 25):
Rejected stalkers: people who begin to stalk following the breakdown of an important relationship, usually a sexually intimate one. They may be motivated by reconciliation, revenge, or both at different times. They are often jealous or possessive, and they may suffer from personality disorders. Almost all former partner stalkers fall into this group.
Intimacy seeking stalkers: people who stalk in order to become intimate with someone they are (wrongly) convinced will or already does return their affection. A high proportion of this group suffers from delusional or psychotic mental illness. They may stalk the same victim for a long time.
Incompetent suitors: people who stalk in order to get a date or sexual encounter or to establish a new friendship, often because they lack the social skills to initiate social contact appropriately. They may realise that their victim does not currently reciprocate their feelings, but they hope that this will change. They may be more likely than intimacy seeking stalkers to target multiple victims (intimacy seeking stalkers are more fixed on their ‘true love’). They may suffer from cognitive and/or social impairments.
Resentful stalkers: those who set out to frighten or distress the victim because they believe they have been wronged. This may be related to the victim’s real or perceived characteristics or actions, or it may be an outlet for a more general sense of grievance. Resentful stalkers may have paranoid personality traits and/or psychotic illness.
Predatory stalkers: those who stalk in order to obtain sexual gratification (for example, through voyeurism) or in preparation to sexually assault or attack the victim. These stalkers may have previous convictions for sexual offending.
The Harms of Stalking:
The report concluded that the “harms arising from stalking can be serious and long-lasting. Experiencing stalking is associated with fear and lower overall mental wellbeing; it is also associated with diagnosable psychological disorders such as depression, anxiety and post-traumatic stress disorder, and sleep disorders. Among Australians who experienced stalking or harassment in 2012, more than half of females and around one-third of males experienced fear or anxiety in the year after it began. Victims may also change their behaviour in response to stalking and may experience significant personal inconvenience, financial cost, and social, reputational and professional harm” (at pages 24 to 25).
The report found that “[i]mprisonment was the most common sentencing outcome for stalking charges in the higher courts (82%) and Magistrates’ Court (32%). Offending occurring in a family violence context was correlated with a higher likelihood of receiving imprisonment for both males and females, but gender was even more strongly correlated than a family violence flag with a higher likelihood of imprisonment. The most likely cohort to receive imprisonment was male family violence offenders (46%), followed by male non-family violence offenders (29%), then female family violence offenders (17%) and finally female non-family violence offenders (9%)…Of offenders who received imprisonment in the Magistrates’ Court (since 2017), just 8% did not spend any time on remand prior to being sentenced. Of the remaining 92%, 4% received a sentence shorter than the time they spent on remand, 32% received a time served prison sentence, and 56% were required to spend more time in custody after being sentenced” (at page 5).
After reviewing sentencing precedents in Victoria, the report found that “[b]ecause of the diversity of circumstances in which stalking occurs, it can be difficult to ascertain the sentencing range for stalking. However, some factors do stand out, and they are largely consistent with those associated with a higher risk of harm for victims. Stalking has been considered more serious where” (at page s 30 to 32):
• it was associated with family violence, particularly where there had been violence within the relationship or where an intervention order had been breached;
• the behaviour lasted a long time or continued or recurred despite the offender having a previous conviction for stalking or similar behaviour, or an intervention order having been obtained by the victim;
• the stalking was particularly intense in terms of the amount or severity of interferences in the victim’s life;
• the behaviour was particularly calculated;
• the offender did not take responsibility;
• the context suggested the stalking might have been a prelude to further offending; and
• the effect on the victim was particularly severe.
The Report found that “[h]alf of all stalkers reoffend within four years. The Council analysed the reoffending patterns of all people sentenced for stalking offences in 2015 and 2016 (1,132 people). Within four years, more than half (56%) of them had been sentenced again, almost one-fifth (18%) had been sentenced for a violent offence, one-quarter (25%) were sentenced for breach of a FVSN or FVIO, and 8% were sentenced for another stalking offence. It was not possible to track whether these subsequent offences occurred as part of a stalking episode, nor whether they were committed against the victim of the original stalking charge. The reoffending rates were higher for males than for females, for family violence offenders than for non-family violence offenders, for children than for adults, and for offenders in rural and regional Victoria than for offenders in the Greater Melbourne area” (at pages 6 to 7).