People often understand and define intimidation on a day-to-day basis as offensive behaviour or unpleasant interaction. But how do criminal laws in NSW define the crime of intimidation? The Crimes (Domestic and Personal Violence) Act 2007 (NSW) deals with Intimidation under criminal law.
Intimidation (noun) is the feeling of discouragement in the face of someone’s superior fame, wealth, or status. Basically, intimidation refers to a party making a person, generally a weaker person feel afraid or timid; an emotion experienced in anticipation of some specific pain or danger. The term comes from the term used in medieval Latin (intimidāre). This article discusses legal matters related to such offences.
The Offence of Intimidation in NSW
Australian criminal laws define intimidation to be behaviour that amounts to harassment, sexual assault, causes fear of safety, or any other behaviour that causes a reasonable apprehension of violence or injury to someone. This includes damage to a person or his property. For a case of intimidation to proceed, the prosecution must prove beyond reasonable doubt the following:
- 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 someone in fact intimidated the victim.
Which Acts Amount to Intimidation?
Section 7 of the Crimes (Domestic and Personal Violence) Act 2007 provides that intimidating a person means:
- 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 above-mentioned Section also provides that an example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email.
Laws provide a broad definition for “intimidation”; it can refer to any act that creates fear of physical or mental harm. It can also include the process of attempting to coerce or deter an action by inducing fear.
However, not every unpleasant interaction will amount to intimidation. But the problem remains that persons may interpret and define intimidation differently. There have been cases in which people have faced charges of intimidation where the alleged behaviour did not in fact amount to intimidation.
Courts define intimidation in a number of cases. For instance, in the cases of Mahmoud v Sutherland  and R v Turnbull (No 5), courts define intimidation as behaviour going “beyond rude, offensive and boorish behaviour”.
In Kelly v R , the court rejected the submission that a lack of verbal threats rendered the intimidation less serious. The seriousness of the intimidation was not mitigated by the absence of express verbal threats; the intimidation consisted of threateningly pointing a gun directly at people.
Because laws define intimidation broadly, the context of the interaction is extremely important. In addition, Section 7 of the Crimes (Domestic and Personal Violence) Act 2007 provides that for the purpose of determining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.
Factors that can be considered to determine intimidation include, but are not limited to, the following:
- The method or manner of Intimidation. For instance, whether it was carried out face-to-face, over the phone, through email or a third party.
- The degree of Intimidation. The type of threat that was made is also relevant. Threatening to “kill someone” might be considered more serious than saying you’re going to make someone’s life “miserable”.
- The duration of the Intimidation. The period of time over which the intimidation is alleged to have occurred is important. For example, to force and intimidated a person over an extended period of time as opposed to uttering a few words and then walking away.
- The location of the Intimidation. In some instances, the location of the incident can make the offence more serious. For example, the Intimidation may occur at the victim’s home or place of work.
What Amounts to “Intention”?
The prosecution must also prove that the accused intended to intimidate the victim. This requirement is satisfied if it is proved that the accused knew that their conduct is “likely” to frighten the other person. Because intent can be subjective, every case will need to be considered on its own facts and circumstances.
Courts define Intimidation and intent as well. In He Kaw Teh v The Queen  HCA 43, the Court recognised that it would be difficult to prove a state of mind in the absence of admissions that one intended to (or knew the actions would likely) cause physical harm. For this reason, Courts can make inferences as to intention or knowledge by looking at the conduct, or from circumstances surrounding the conduct.
The court also applied this principle in McIlwraith v R  NSWCCA 13, wherein the Court made inferences that the offender knew that his actions were likely to cause fear of physical harm to the victim. The court made this inferential finding on the basis of the offender’s evidence as to his state of mind at the time, and his actions at the time.
Despite claiming that he thought his conduct would not cause the victim to fear him, the Court found that the offender must have known that his actions of following the victim, from the victim’s home to the next door neighbour’s home, while carrying an axe, were likely to cause the victim to fear for physical harm.
Penalties for Intimidation
Under Section 13 of the Crimes (Domestic and Personal Violence) Act 2007, any person who stalks or intimidates another with the intention of causing fear of physical or mental harm knowing the conduct is likely to cause fear will be punished for up to 5 years’ imprisonment and/or 50 penalty units.
The Importance of Seeking Legal Advice
You may be a victim facing threats or acts amounting to Intimidation and you may want to press charges. Or perhaps you are someone facing charges of Intimidation and are in need of legal services.
In either situation, JB Solicitors can help. We are a leading team of lawyers with experience in criminal law. Our solicitors can give you the best legal representation to ensure that we take care of all legal matters. We can also help you understand your rights more.
Do you have any more queries on how laws define intimidation? Contact us today.