Domestic violence has become a serious and widespread issue in Australia. It takes place when someone who has a close personal relationship makes another feel afraid, unsafe or powerless. Domestic violence can be physical, but also can be psychological and emotional.
In NSW, the NSW Crimes (Domestic and Personal Violence) Act 2007 is the principal legislation in relation to Apprehended Domestic Violence Orders(‘ADVOs’) in the domestic violence context, and to domestic violence specified offences.
ADVO offences include various forms of personal violence, including physical, sexual, psychological, and emotional abuse. It also includes behaviour that is controlling, dominating, threatening, intimidating and stalking.
In this context, intimidation means the following conduct:
- Harassment or molestation of another person;
- Approaching someone using any method that causes a person to fear for their safety, including through the use of technological devices such as cellphones; or
- Conduct causing apprehension of injury to a person or damage of their property.
Stalking means the following conduct:
- Watching someone or following them; or
- Frequently being near their location (e.g. home, business, workplace, social/leisure spots frequented by the protected person).
Examples of domestic violence are controlling a family member’s finances, depriving them of their liberty, damaging their property, and physically abusing them by slapping, kicking, or punching.
It should be also noted that contravening an ADVO itself is also a personal violence offence. Thus, if a person breaches any of the prohibitions of an ADVO, he or she can be guilty of an offence that can attract a maximum of 2 years imprisonment, a $5,500 fine, or both.
What relationships are covered?
ADVOs are only made when the protected person is or used to be in a ‘domestic relationship’ with the defendant. These include the following relationships:
- De facto relationships
- Intimate personal relationships (regardless of whether a sexual relationship is involved)
- Relationships between persons living in the same household
- Relationships between residents of residential facilities
- Relationships where the protected person depends on the ongoing paid/unpaid care of the defendant
- Relationships between relatives; and
- For Aboriginal persons or Torres Strait Islanders, extended family/kinship relationships.
When can the court grant ADVOs?
Upon application, a court can make an ADVO if it is satisfied that the person who is/was in a domestic relationship with the defendant has reasonable grounds to fear, and actually fears:
- That the defendant will commit a ‘personal violence offence’ against the protected person; or
- That the defendant will intimidate or stalk the protected person.
In some situations, being actually afraid of these events is not necessary. This will apply when the protected person is under 16 years of age, or if the court believes that the protected person has already been or will likely become a victim of a ‘personal violence offence’.
Although the court needs to make some considerations before granting an ADVO, the overriding concern it will have is for the safety and protection of the protected person, and any child directly affected by the defendant’s offending conduct.
The court can also impose additional prohibitions on the defendant that it thinks necessary or desirable to safeguard the protected person. For example, this could include prohibitions on:
- Approaching the protected person
- Approaching the protected person within 12 hours of consuming drugs or alcohol
- Possessing firearms
- Accessing the protected person’s workplace, residence etc.
- Interfering with the protected person’s property.
Automatic Final and Interim ADVOs
In special situations, a court will automatically make a final ADVO. This must occur when the defendant pleads guilty or is found guilty of the following offences:
- Stalking or intimidating; or
- A domestic violence offence.
Even if the defendant hasn’t been found guilty yet, an interim ADVO can still be automatically made if the defendant has been charged with a ‘serious offence’. ‘Serious offences’ include:
- Stalking or intimidating
- Attempted murder
- Domestic violence offences.
It should be noted that orders relating to domestic violence in any Australian states or territories which are issued from 25th of November 2017 will be automatically recognized and enforceable throughout the nation.
The offence of Breach AVO can be found in section 14 of the Crimes (Domestic and Personal Violence) Act 2007 NSW.
Section 14 states that “ A person who knowingly contravenes a prohibition or restriction specified in an Apprehended Violence Order against the person is guilty of an offence”
A breach of an Apprehend Violence Order commonly known as AVO is a criminal offence. A person who has an AVO against him/her is not guilty of a criminal offence and the AVO will not appear on his or her criminal record.
Breaching an AVO carries a maximum penalty of two years imprisonment and/or a fine of $5,500. Commonly a charge of a breach of an AVO is not enough for a court to impose a maximum full term imprisonment. However, if an AVO is breached with an act of violence or if you have a history of domestic violence offences, the court will carefully consider whether a jail term should be served.
Typically when an AVO is issued against a person, a copy of the order is served on him or her. The order will outline the conditions (DO NOT DO) of the order. A person who has not been served with a copy of the order is not guilty of breaching an AVO.
To be convicted with a breach of an AVO the police must prove beyond a reasonable doubt that:
- There was an active and valid AVO at the time of the alleged offence
- You breached a restriction or prohibition contained in the AVO.
In NSW, a court may impose any of the following penalties for a breach of AVO charge:
- Custodial sentence
- Home Detention
- Intensive Corrections Order
- Suspended Sentence
- Community Service Order
- Good Behaviour Bond
- Section 10 (Where a court impose a penalty that the court deem appropriate without recording a conviction, resulting in the defendant maintaining his clean criminal record if it is his first offence)
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