Citation: Kristeller v R [2025] NSWDC 591
Court: District Court of NSW
Date: 17 September 2025
Judge(s): Neilson DCJ
Background
The appellant and the complainant had been in an intimate personal relationship that ended approximately 28 years before the events in question. The appellant had, over a period of roughly 18 years and on several separate occasions, confronted the complainant based on a belief that she had spread falsehoods about him. The police record of interview revealed that the appellant had been receiving psychiatric treatment and held what the court characterised as delusional beliefs about the complainant's conduct toward him.
On 22 March 2024, the complainant was walking along Oceanview Avenue, Vaucluse, when the appellant drove past her, sounded his horn loudly, made a U-turn, and drove along the wrong side of the road alongside her. He repeatedly shouted words at her to the effect that she was not a whore or a slut but was a liar. The complainant ran back up the street to a chiropractic clinic, where she was hysterical and crying, before calling police.
The Local Court at Waverley convicted the appellant of intimidation under section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 and imposed a Conditional Release Order without conviction for 18 months. The appellant appealed to the District Court on all grounds, though no challenge to the sentence was ultimately pursued.
Legal Issues
- Whether the prosecution established the mental element of the offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, namely that the appellant acted with the intention of causing the complainant to fear physical or mental harm
- What threshold applies to "mental harm" for the purposes of the Act
Decision
Ground 1: Mental element of intention
Neilson DCJ upheld the Magistrate's finding that the mental element was proved beyond reasonable doubt. His Honour reasoned that the appellant's conduct, viewed against the 18-year history of confrontations and his own explanation in the police interview, could only have been intended to cause the complainant sufficient distress to dissuade her from what he believed she was doing. The court described the appellant's apparent purpose as an intent to "taunt" the complainant into abandoning what he erroneously perceived as misconduct toward him.
Ground 2: Threshold for "mental harm"
His Honour addressed the meaning of "mental harm" under the Act, drawing on the reasoning of McIlwraith v R [2017] NSWCCA 13 and the observations in Hemphill v R [2023] NSWDC 398. The court held that the threshold for mental harm is extremely low: any abnormal mental condition that a person ought to avoid, including fear, terror, or suffering, suffices. His Honour confirmed that the intent required is something more than an intent to cause mere irritation, embarrassment, or anger, but that the bar does not rise to a requirement of serious psychological injury.
The use of profanity was treated as largely irrelevant to the outcome. Neilson DCJ noted that the underlying words were themselves offensive, and that the entire context, including the history between the parties and the appellant's apparent delusional state, meant the conduct was plainly capable of causing the complainant to fear mental harm.
Orders Made
- The appeal is dismissed.
Key Takeaways
- Under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, the threshold for "mental harm" is extremely low: a fear of suffering, terror, or any other abnormal mental state that a person ought to avoid is sufficient to satisfy the element.
- The intent required goes beyond an intent to cause irritation, embarrassment, or anger, but stops well short of requiring an intent to inflict serious psychological injury.
- In assessing intention, a court may look beyond the immediate incident to the full history between the parties, including a pattern of repeated confrontations over many years.
- The District Court confirmed that the absence of physical proximity between an offender and a complainant (here, separated by parked cars on a street) does not preclude a finding of intimidation.
- Statements made by a defendant in a police record of interview can form a significant basis for inferring the mental element of an offence, particularly where those statements reveal the defendant's stated purpose in approaching the complainant.
Legislation and Cases Referenced
Legislation
- Crimes (Domestic and Personal Violence) Act 2007 , s 13
Cases
- Hemphill v R [2023] NSWDC 398 at [23]
- McIlwraith v R [2017] NSWCCA 13 at [30]-[41]