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 an individual to be found guilty of intimidation:
- That the act, physical or otherwise, amounts to “intimidation”; and
- That the accused intended to so 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 has to prove is a factual one and that is that the conduct of the accused amounted to intimidation.
Intimidation at 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 and in general terms the definition covers almost any type of approach or contact that causes a person to fear for his or her safety. The broad nature of the definition unfortunately gives rise to ambiguity as each and every person’s interpretation of what amounts to intimidation is different. The definition of intimidation has been considered in a number of higher courts and importantly in the cases of Mahmoud v Sutherland (2012) NSWCA 306 and R v Turnbull (No 5)  NSWSC 439, it was determined that for an act to be classified as intimidation, it must go beyond rude, offensive and boorish behaviour.
It is important to note that 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 where police charge accused persons with intimidation where the alleged conduct does not in fact amount to intimidation. Our Sydney Criminal Lawyers have successfully defended many cases on that basis.
2- What amounts to “Intention”?
The second element that the prosecution has to prove relates to the intention of the accused. Intimidation is an offence of ‘specific intent’, meaning that the prosecution has to prove that the accused intended to intimidate the victim. For the purpose of intent however, the legislation provides that all the Prosecution needs to prove is that the accused knew that the conduct is likely to cause fear in the other person.
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 each and every case will need to be considered based on its own facts and circumstances. However 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 the accused’s intention and this is an important factor to consider when preparing a defence to a charge of intimidation.
Which Court are intimidation cases heard in?
Intimidation charges are generally heard in the Local Court and are dealt with summarily 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?
In any criminal matter an accused person has the option to either plead guilty or not guilty to the alleged charges. If a plea of not guilty is entered then the matter will proceed to a trial or hearing where the court will determine the innocence or guilt of the accused person. If an accused person is found guilty or alternatively if a plea of guilty is entered then the matter will proceed to a sentence hearing where the court will determine the most appropriate punishment for the offender.
What will happen if I plead guilty? (Sentencing)
There are many factors that the court will consider when sentencing an offender 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 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 a number of factors when determining objective seriousness, including the following:
The method of intimidation
Whether the intimidation was carried out in person, via telephone or any other means. Generally the more direct the intimidation is the more serious the offence is considered to be.
The degree of the intimidation
- Whether the intimidation was direct threats, or conditional threats, 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, example “if you do (x), I will punch you in the face”.
- The type of threat that is made is also relevant, 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 to determining how objectively serious the offence is, 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 aggravate the offence, 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 take into account the subjective factors of an offender at sentencing. This includes, but is not limited to:
The Attitude of the Offender towards their Conduct
The offender’s willingness to accept their wrongdoing is an important factor. Also of relevance is whether the offender is remorseful and contrite for their behaviour.
Prior Criminal Record
The Court must consider an offender’s criminal record. First time offenders or offenders with minimal criminal history will generally receive some leniency from the court. However the fact that an offender has a criminal record does not aggravate the offence or the sentence generally, rather it disentitles the offender to leniency.
Good character can be demonstrated by community involvement, and general compliance with the law. It can also be evidenced by character referees.
Mental illnesses of the offender must be considered, especially where there is evidence that the mental illness contributed to the occurrence of the offence. In some circumstances it may also be appropriate for the offender to be diverted away from the criminal justice system under a mental health plan.
The Availability of a Support Network
The fact that an offender has available to them a support network through family and friends is a relevant factor that a sentencing court can take into account on sentence.
The offender’s prospects of rehabilitation
The court can take into account a number of factors when determining an offenders prospects of rehabilitation, including 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 has to give weight to.
The Likelihood of Re-offending
Based on the offender’s age, criminal history, the offender’s attitude and the rehabilitation undertaken the court is also required to make a finding as to the likelihood of re-offending. The likelihood of re-offending can be significantly reduced through the undertaking of rehabilitation.
What should I prepare for my sentence?
It is in the offender’s best interests to put before the Court all relevant information that the Court will need to consider when sentencing for an offence of intimidation. This can be done by obtaining character references, writing a letter of apology, obtaining reports and other relevant documents. It is helpful to also explain any personal circumstances or recent events that may have led to the commission of the offence of intimidation. The following is some of the material that should be obtained:
Character references can be written by friends, family members or work colleagues and they can help express to the court that the offender’s actions were out of character. They can also assist in corroborating the offender’s attitude towards their offence and the other subjective factors in their case.
Write a Letter of Apology
A letter of apology can help express the offender’s genuine remorse, shame, embarrassment and acceptance. It is also an effective way of detailing the offender’s subjective circumstances, including the impact that a criminal conviction for an offence of intimidation might have on them.
Enter a plea of guilty at the earliest opportunity
Entering a plea of guilty at the earliest opportunity shows that the offender is willing to accept responsibility for their actions and it requires the court to give the offender the maximum available 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 of showing the court that an offender is willing to change and better themselves. The sentencing court must give weight to the rehabilitation that an offender 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 post and is a factor amongst many that is taken into account at sentence.
What are the most likely penalties for a case of intimidation?
Each and every case of intimidation will need to be determined on its own merits and factual circumstances. However the court can consider a number of different sentences, including penalties that do not involve the imposition of 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) custodial 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 an offender. It means that despite the Court finding the person guilty of the offence of intimidation, the Court will discharge the person without recording a conviction for intimidation on their criminal record and the Court will not impose any other penalty.
Section 9(1)(b) Conditional Release Order (CRO) without Conviction (formally known as a section 10 bond)
A Court may also sentence an offender 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 bond carries standard conditions which include: being of good behaviour and appearing before the Court if called upon to do so at any time during the duration of the bond. The court can also add additional conditions such as supervision.
The maximum term of a Conditional Release Order is 2 years and the bond starts on the day that it is made. If the person breaches the good behaviour bond the court may revoke the bond and re-sentence the offender to a harsher form of punishment.
Outcomes with Conviction:
If the court determines that a 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 imposed with a conviction and will result in the offender having a criminal record.
A Court may also impose a fine on an offender charged with 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 offender’s financial circumstances and their ability to pay the fine.
Community Correction Order (CCO)
A Community Corrections Order is a more serious form of bond than a Conditional Release Order, where in addition to standard conditions and supervision, the court can also include a component of community service work.
A court can impose a custodial sentence for very serious cases of intimidation. However custodial sentences do not necessarily have to be served in a full-time prison and the court can allow an offender to serve the custodial 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.