Certain threats and intimidation are considered to be serious criminal offences.
For each of those offences, the prosecution must prove certain matters beyond reasonable doubt.
Those matters are called the ‘essential elements’ of the offence.
Here are the essential elements and maximum penalties for 6 of the most commonly charged offences involving threats or intimidation:
1. Stalking or intimidation with intent to cause fear of physical or mental harm
This is an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) that attracts a maximum penalty of 5 years imprisonment and/or $5,500.
The essential elements are:
For Stalking:
(i) that you ‘stalked’ another person, and
(ii) that through those actions, you intended the other person to fear physical or mental harm.
‘Stalking’ is the act of repeatedly following or otherwise harassing another person.
It normally involves a series or pattern of conduct which, taken together, amounts to a form of harassment.
Examples include repeatedly showing up to places where the alleged victim is known to attend eg work, home or in some cases a social venue, continuing to send gifts or emails or to make calls after it is made clear that they are not welcome etc.
For Intimidation:
(i) that you ‘intimidated’ another person, and
(ii) that through those actions, you intended the other person to fear physical or mental harm.
‘Intimidation’ involves coercing someone into acting in a particular way.
The intended conduct can be an ‘action’ eg agreeing to meet you or letting you into a premises. It can also be an ‘omission’ eg staying away from another person or place.
Intimidation often involves threats such as ‘you better let me in or else…!’ or ‘if you do that, you know what’s gonna happen to you’.
However, words are not necessary and intimidation can occur through actions designed to pressure another into compliance.
Does the other person actually have to be fearful?
No. The other person does not actually have to be put in fear by your conduct.
It is enough for the prosecution to prove that you knew that your conduct was likely to cause fear in the other person.
Nor is the other person required to have acted in accordance with your desire, eg to have opened the door or stayed away from their new partner.
2. Using a carriage service to menace, harass or cause offence
This is an offence under section 474.17 of the Criminal Code Act 1995 (Cwth) that carries a maximum penalty of 3 years imprisonment.
The essential elements are:
1. that you used a ‘carriage service’, and
2. that the manner of use would be regarded by reasonable persons as ‘menacing’, ‘harassing’ or ‘offensive’.
‘Carriage service’
A ‘carriage service’ is anything that is transmitted through a carriage service provider such as Telstra, Optus, Vodafone etc.
It includes all telephone communications such as calls, voice messages and sms transmissions, all internet transmissions including emails and internet posts and any other communications that occur through a carriage service provider.
‘Menacing’
The Act does not define menacing’.
However, something can be seen as ‘menacing’ if it suggests the presence of oncoming danger.
Telephone calls may be considered ‘menacing’ if they are likely to cause the recipient to apprehend the possibility of an oncoming danger.
Examples might include repeated telephone calls whereby the caller remains silent for long periods of time or makes noises that may scare the recipient.
‘Harassing’
Again, the Act does not define ‘harassing’ or ‘harassment’.
However, ‘harassment’ can be defined as persistent or ongoing unwanted actions against another.
Another definition is to irritate or torment persistently.
This could include repeatedly calling someone after they kept hanging up on you, or calling them on an ongoing basis after they made it clear that they no longer wanted your calls, or finding other ways to communicate via phone or internet after being ‘blocked’ via mobile, email or social media.
‘Offensive’
The law says that something is ‘offensive’ if it would wound the feelings or arouse disgust or outrage in a reasonable person.
That ‘reasonable person’ must be ‘tolerant and contemporaneous’ and not ‘too thin skinned’.
Although there is no list of what words or actions are ‘offensive’, it has been held that the word ‘fuck’ can be offensive.
However, it has also been found that there must be an intention to offend, which means doing an act with knowledge that it could offend.
So, for example, a person would not be acting offensively if they were to use the word ‘fuck’ during a telephone conversation with a friend under an honest but mistaken belief that the word would not offend.
3. Using a postal service to menace, harass or cause offence
This is an offence under section 471.12 of the Criminal Code Act 1995 (Cwth) that attracts a maximum penalty of 2 years imprisonment.
It is identical to the preceding section except that it involves sending materials by ‘postal service’, rather than transmitting by carriage service, and the maximum penalty is lower.
It relates to sending letters, photos, videos and other materials and objects by post or courier service.
The material does not actually have to be delivered.
4. Documents containing threats
This is an offence under section 31 of the Crimes Act 1900 (NSW) that carries a maximum penalty of 10 years imprisonment.
The essential elements are:
1. that you intentionally or recklessly sent or delivered a document,
2. that threatened to kill or inflict bodily harm on any person,
3. knowing the contents of the document.
Obvious examples include intentionally sending or delivering:
- a letter that you wrote containing a threat of death, injury or physical violence to the recipient, or
- a letter that you wrote threatening death, injury or physical violence to someone other than the recipient, or
- a letter that another person wrote knowing that it contains a threat of death, injury or physical violence.
The offence can be established despite the letter not being received or read by the intended recipient.
So, for example, the offence can be proved despite the letter being seized by Australia Post, or handed-over to police by someone other than the intended recipient, or given by the intended recipient to police without having opened or read it.
5. Conveying false information that a person or property is in danger
This is an offence under section 93Q of the Crimes Act 1900 (NSW) that attracts a maximum penalty of 5 years imprisonment.
The essential elements are:
1. that you conveyed information,
2. that you knew to be false or misleading,
3. that is likely to make the recipient fear for the safety of any person or property.
The section most commonly applies to ‘hoax threats’ such as bomb threats, arson threats, claims that a place is ‘booby trapped’ etc.
The information can be conveyed by any means including:
- an oral statement whether in-person, by telephone or otherwise broadcast,
- a written statement whether sent, delivered or otherwise published,
- any form of electronic transmission whether analogue or digital, including any email, text message, publication on a social networking site or otherwise.
6. Common assault
Section 61 of Crimes Act 1900 (NSW) makes it an offence to put another person in fear for their immediate physical safety.
The offence is called ‘common assault’ and carries a maximum penalty of 2 years imprisonment in the District Court or 12 months imprisonment and/or $2,200 fine in the Local Court.
A common assault would normally occur if you walked up to someone and threatened to hurt them, for example to punch, hit or kick them or gestured to do so.
However, the threat of harm would need to be ‘imminent’.
This means that a threat to hurt some at a later time would not amount to common assault eg ‘I’m gonna bash you someday’ or ‘you better watch your back mate’.
Equally, telephone threats from a long distance would not normally amount to common assault – although they may be illegal under other laws.