Case facts

The client was charged with stalking or intimidating intending to cause fear of physical or mental harm after our client continually contacted his ex-girlfriend via social media and mobile phone over a twelve month period. The client then approached the complainant on numerous occasions. The client was charged and required to attend at the Local Court. There was also an associated AVO sought in this matter and provisional orders or interim orders were made in favour of the PINOP (person in need of protection).


Subjective circumstances

The client had had a difficult time dealing with the break-up of the relationship with the complainant and was suffering from a mental illness or condition during and after the period of the offending conduct.


Potential penalties

Our client was charged with stalk or intimidate intending to cause fear of physical or mental harm under s.13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) the penalty for which is five years imprisonment and a $5,500 fine. As this matter was being heard in the Local Court the maximum term of imprisonment that could be imposed was two years.


Local Court proceedings

We appeared for the client and obtained a psychological report setting out the mental condition the client was suffering from at the time of the offending behaviour. An application was then made under s.32 of the Mental Health (Forensic Provisions) Act. This is an application to the Court where it is requested that the client is dealt with in accordance with the mental health provisions and not in accordance with the law.

Essentially a section 32 application allows the potential for defendants who are now, or were at the time of the offence, suffering from mental illness or condition for which treatment is available in a mental health facility to be diverted from being dealt with according to law and receive treatment.

A Magistrate is required to make at least three decisions.

Firstly, they are to determine whether the defendant is eligible to be dealt with under s.32.

Secondly, the Magistrate then must determine whether it is more appropriate to deal with the defendant in accordance with the provisions of section 32 than otherwise in accordance with law.

Finally, if it is more appropriate to deal with the defendant according to section 32, a decision must be made as to what action should be taken.

We were successful in our application to have the matter dealt with under section 32 and the charge of stalk or intimidate with intent to cause fear of physical or mental harm was dismissed upon the client entering into counselling and treatment for a period of six months. Upon such order being made, the client no longer faced the potential of conviction and penalty.


Why you need an expert criminal defence lawyer

Charges of stalking and intimidation and those related to AVOs or apprehended violence orders are quite common, though the consequences can be devastating. An AVO can affect your ability to see your children, or attend certain premises, result in loss of security licence and loss of privilege to lawfully possess a firearm.



Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.