What does the Prosecution have to prove in a case of intimidation?
There are two key elements that the Prosecution must prove, beyond reasonable doubt, for a person to be found guilty of intimidation. They are:
- That the act, physical or otherwise, amounts to “intimidation”; and
- That the accused intended to intimidate the victim;
The prosecution does not have to prove that the victim was in fact intimidated.
1- What is Intimidation?
The first element that the prosecution must prove is a factual one. Namely, did the conduct of the person amount to intimidation?
Intimidation in criminal law is a slightly different concept to what most people on a day-to-day basis understand it to be.
For legal purposes, intimidation is defined in Section 7(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) as:
- Conduct (including cyberbullying) amounting to harassment or molestation of the person, or;
- An approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or;
- Any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.
The definition of intimidation in the legislation is extremely broad. The definition covers almost any type of approach or contact that causes a person to fear for his or her safety.
The problem remains however that, every person’s interpretation of what amounts to intimidation is different.
The definition of intimidation has been considered in a number of higher courts. In the cases of Mahmoud v Sutherland and R v Turnbull (No 5) , it was determined that, for behaviour to amount to intimidation, “it must go beyond rude, offensive and boorish behaviour”.
In determining whether a person’s conduct amounts to intimidation, a court may also have regard to any pattern of violence in the person’s behaviour.
There have been many cases in which police have charged people with intimidation where the alleged behaviour does not in fact amount to intimidation. Our Sydney Criminal Lawyers have successfully defended many intimidation cases on that basis.
2- What amounts to “Intention”?
The second element that the prosecution must prove relates to the intention of the person.
Intimidation is an offence of ‘specific intent’. This means that the prosecution must also prove that the accused intended to intimidate the victim.
Intent is also defined differently in intimidation cases. Intent will satisfied if the Prosecution can prove that the person knew that their conduct is likely to cause fear in the other person.
The addition of the word “likely” lowers the threshold of intent significantly. For example, if a person yelled at someone in a real aggressive tone. Although they might not have specifically intended on intimidating the person, if they knew that it was likely to intimidate the person, they will be guilty.
The crucial question therefore is, did the accused know that their conduct is “likely” to cause fear in the other person?
There is no straightforward answer to that questions and every case will need to be considered on its own facts and circumstances.
However, in determining that question, one important matter to note is that, although intoxication is not a defence at law in NSW, the Courts have found that intoxication can be taken into account when determining whether the accused knew there conduct is “likely” to intimidate.
Which Courts are intimidation cases heard in?
Intimidation charges are generally heard in the Local Court, unless the Director of Public Prosecutions chooses to elect the matter to the District Court.
If a charge of intimidation remains in the Local Court, the case is heard before a Local Court Magistrate alone. If the charge is heard in the District Court, the case will be heard by a District Court judge and additionally a 12-member jury panel where the accused has pleaded not-guilty.
Should I plead guilty or not guilty to intimidation?
In any criminal matter an accused person has the option to either plead guilty or not guilty to the allegations that have been made against them.
If a plea of not guilty is entered, the case will proceed to a trial or hearing where the court will determine the innocence or guilt of the person.
If a person is found guilty or if they plead guilty, the matter will proceed to a sentence hearing. This is where the court will determine the most appropriate punishment for the person.
What will happen if I plead guilty to intimidation? (Sentencing)
There are many factors that the court will consider when sentencing someone for intimidation. These include both the objective and subjective features of the case. Based on those factors the court will determine the appropriate penalty and whether or not to record a criminal conviction.
One of the most important factors at sentencing is how “objectively serious” the particular offence is when compared to other offences of intimidation.
The court can consider several factors when determining objective seriousness, including the following:
The method of intimidation
The court must take into account how the intimidation occurred. Generally, the more direct the intimidation is, the more objectively serious the offence is. For example, whether it was carried out face-to-face, over the telephone, through email or a third party.
The degree of the intimidation
- Whether the intimidation was a direct threat or a conditional threats. For example, threatening to punch someone in the face might be considered more serious than a conditional threat where the threat is based on the occurrence of some other event. For example, “if you do (x), I will punch you in the face”.
- The type of threat that is made is also relevant. For example, threatening to “kill someone” might be considered more serious than saying something like “I’m going to make your life miserable”.
- Threats involving only words as opposed to physical actions are generally considered less serious.
The duration of the intimidation
The period of time over which the intimidation is alleged to have occurred is important. For example, intimidating a person over an extended period of time in comparison to uttering a few words and then walking away.
The location of the intimidation
In some circumstances, the location of the incident can make the offence for more serious. For example, if the intimidation occurred at the victim’s home or place of work.
Whether the intimidation is a planned or spontaneous act
Whether the decision to carry out the intimidation was planned or a spontaneous reaction is also relevant. The more planning involved, the more serious the intimidation is considered to be.
The Court must also consider the personal circumstances of a person at sentencing. This includes:
The attitude of the person towards their behaviour
A person’s willingness to accept their wrongdoing is very relevant at sentencing. This also includes whether the person is remorseful and apologetic for their behaviour.
The Court must consider a person’s criminal record. First time offenders and persons with minimal criminal history will generally receive some leniency from the court.
However, the fact that a person has a criminal record does not alone aggravate the offence. Rather, it dis-entitles the offender to leniency. This is an important distinction that your lawyer should highlight to the court at sentencing.
Good character can be demonstrated by a persons involvement in the community. It can also be evidenced through character references.
A persons mental health must also be considered. Especially, where there is evidence that the persons mental health contributed to the occurrence of the offence.
In some circumstances, it may also be appropriate for the person to be diverted away from the criminal justice system under a mental health plan. This is known as a Section 32 Application.
The availability of a support network
The fact that a person has a support network through family and friends is a very relevant factor. This gives the court some assurance that friends and family will help steer the person in the right direction.
The person’s prospects of rehabilitation
The court can take into account a number of factors when determining an offenders prospects of rehabilitation. This includes the offender’s age, criminal history, their attitude towards their offending and importantly any rehabilitation that the offender has undertaken.
The steps taken by the offender towards rehabilitation plays a significant part in sentencing. An offender’s willingness to reform and change is a matter which the court must consider.
The likelihood of re-offending
Based on the person’s age, criminal history, attitude and the rehabilitation that they have undertaken, the court must also consider the likelihood of the person re-offending. A court is more like to find that there is a low risk of re-offending, if the person has undertaken some form of rehabilitation.
What should I prepare for my sentence?
There are a number of things that a person should prepare for an intimidation sentence. The following is some of the material that should be prepared:
Character references can be written by friends, family members or work colleagues. Character references can help express to the court that the person’s actions were out of character. They can also corroborate the person’s attitude towards their offence and their personal circumstances.
Write a Letter of Apology
An apology letter is a very important document to prepare. It can help the person express remorse, shame and regret. It is also a good way for the person explain the events surrounding the offence and other important personal circumstances, including the impact that a criminal conviction for intimidation might have on them.
Enter a plea of guilty at the earliest opportunity
Entering a plea of guilty as soon as possible shows that the person is willing to accept responsibility for their actions. It also requires the court to give the person a discount of 25% on sentence.
Take part in rehabilitation
Participating in voluntary rehabilitation programs such as anger management sessions or seeking professional help through a psychologist is a good way for a person to show the court that they are willing to change and better themselves.
The sentencing court must take into account the rehabilitation that a person has undertaken.
What is the Maximum Penalty for intimidation?
The maximum penalty for a charge of intimidation is 5 years imprisonment and/or a fine of $5,500.
However, the maximum penalty is reserved for the most serious of intimidation cases. The maximum penalty in most cases only operates as a guide. The maximum penalty is not the starting point for a sentence.
What are the most likely penalties for a case of intimidation?
Each case of intimidation will need to be determined on its own merits and facts. However, the court can consider a number of different sentences, including penalties that do not involve the a criminal conviction.
Some of the possible penalties that the court might consider can be divided into three categories, a) non-conviction outcomes; b) outcomes with conviction; and c) prison sentences.
A brief outline of the three categories is detailed below:
If the Court decides not to enter a criminal conviction, the court can impose the following sentences:
Section 10(1)(a) – No Conviction Recorded
A dismissal under Section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 is the most lenient sentence that a Court in NSW can impose on a person.
It means that despite the Court finding the person guilty of intimidation, the Court will let the person free without recording a criminal conviction or imposing any other penalty or punishment.
Section 9(1)(b) Conditional Release Order (CRO) without Conviction (formally known as a section 10 bond)
A Court can also sentence an person to a Conditional Release Order for an offence of intimidation. A Conditional Release Order is a good behaviour bond that can be imposed with or without recording a conviction.
The maximum length of a Conditional Release Order is 2 years and the bond starts on the day that it is made.
The bonds standard conditions is that the person be of good behaviour and not re-offend during the bond period. However, the court can also add additional conditions such as supervision.
If the person breaches the good behaviour bond, the court may revoke the bond and re-sentence the person to a harsher form of punishment.
Outcomes with Conviction:
If the court determines that a criminal conviction is necessary, the most common sentences that a court will impose in a case of intimidation are as follows:
Section 9(1)(a) Conditional Release Order (CRO) with Conviction
A Conditional Release Order made under section 9(1)(a) is identical to the Conditional Release Order under section 9(1)(b) as discussed above. However, under this section, the bond is made with a criminal conviction. This will result in the offender having a criminal record.
A Court can also fine a person for intimidation. However, a Court must record a criminal conviction if it decides to do so.
When deciding the amount of the fine, the Court must consider the persons’s financial circumstances and their ability to pay the fine. People who receive fines have the option to ask for time to pay via instalments.
Community Correction Order (CCO)
A Community Corrections Order is a more serious type of good behaviour bond than a Conditional Release Order. In addition to standard conditions and supervision, the court can also include community service work as part of the good behaviour bond.
A court can impose a prison sentence for very serious cases of intimidation. Although, prison sentences do not necessarily have to be served inside a prison. The court can allow an person to serve the prison term in the community under an Intensive Correction Order (ICO).
Our Sydney Criminal Law Team will advise you on the likelihood of a custodial sentence being imposed.
Why should I Choose Australian Criminal and Family Lawyers?
Our highly experienced Sydney Criminal Defence Lawyers are experts at dealing with intimidation charges.
We appreciate how important it is for our client’s to avoid the burden of a criminal conviction and we fight to keep our clients records clean.
Our familiarity and knowledge of the laws are second to none which means that you can rest assured that you are getting Sydney’s Best Criminal Law Team on your side.
Our Sydney Criminal lawyers are ready to take calls 24 hours, 7 days a week. Call us now on 1300SILENT (1300-745-368) or alternatively 0448 142 113 to get immediate legal advice.