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)
Call us 02 9708 6832 for legal advice
One in five Australians have encountered image-based abuse ranging from revenge porn to blackmail and this has led to high levels of psychological distress. People who are caught recording or sharing intimate images of others without consent will now face jail time in NSW under the Crimes Amendment (Intimate Images) Act 2017.
The following actions are classified as offences.
- Intentionally recording an intimate image of another person without their consent;
- Intentionally distributing an intimate image of another person without their consent;
- Threatening to record and/or distribute an intimate image of another person without consent;
- Contravening an order, such as failing to take reasonable steps to take down or destroy an intimate image recorded or distributed without consent.
The first three offences are indictable offences and carry a maximum of three years imprisonment. The fourth offence is categorised as a summary offence carrying a maximum penalty of 50 penalty units or imprisonment for two years or both.
It should be noted that it will be illegal regardless of whether an intimate image is altered or not if the image is intentionally recorded or distributed without consent. Also, there is no requirement that the image must have really existed at the time of the threat to distribute it.
However, a person under the age of 16 cannot provide consent to record or distribute an intimate images. As a result, a prosecution of a person under the age of 16 for any of the three new indictable offences cannot commence without the approval of the Director of Public Prosecutions.
Consent must be ‘freely and voluntarily’ given and can be expressly and impliedly provided. Even if consent was given ‘on a particular occasion’ to record or distribute an image, this alone cannot constitute consent to record or distribute it or any other images ‘on another occasion’. Also, the fact that a person distributes an image of her/himself does not mean that consent has given for ‘any other distribution of the image’ on social medias. Importantly, the law also covers those who threaten to record or distribute images with recklessness such as doing so while being drunk, which cannot be a viable excuse.
There are some exceptions to these new offences. These exceptions arise if the act is done for a ‘genuine medical or scientific purpose’ or ‘by a law enforcement purpose’ or ‘ required by a court or otherwise reasonably necessary to be done for the purpose of legal proceeding’. There is also another exception that if ‘a reasonable person would consider the conduct of the accused acceptable’ subject to a number of factors.
CALL US ON 02 9708 6832 FOR LEGAL ADVICE IF YOU HAVE BEEN CHARGED WITH A CRIMINAL OFFENCE RELATING TO POSTING IMAGES ON FACEBOOK OR SOCIAL MEDIA
- Never Give an interview to police or a prosecuting authority such as the ATO, AFP, Crime Commission, ASIC or Department of Social Security before you speak to a lawyer. The law gives you the right to request police call a lawyer of your choice before they interview or ask you questions.
- Always employ a lawyer who is closest to the Local Court that you are going to. Often these Lawyers know more about the magistrates or judges who are at the Court so they they can conduct your case in line with how the magistrate might be thinking which is the difference between a WIN or a LOSS at Court.
- Always employ a lawyer who is from a law firm specialising in just Criminal Law and Traffic Law. It takes many years of training and experience to become a specialist criminal lawyer. And the criminal law legislation and case law is always updating so it takes a lot of continuing legal education and training to keep up to date. Do not whatever you do employ a lawyer who also does other areas of law. Chances are you are employing a ‘jack of all trades and master of none”.
- Always employ a criminal lawyer who has an office in the suburbs. Avoid big city law firms or law firms with too many offices as they often charge much more legal fees more because of the overhead costs of running the firm such as office rent and staff.
- Avoid going to Lawyers who offer “free first consultations”. As with anything in life “you pay peanuts you get monkeys”. Often these free consultations are conducted by junior lawyers who will give you a sales spin rather than direct honest answers about your legal rights and the best road to take in your case.
- At any first consultation, always ask the lawyer how many WINS they have achieved within the last 6 months. This is an indication of how good a criminal defence lawyer they really are and who you are paying to defend your case. Most Lawyers should give you an honest answer to this question and be able to back it up with file statistics which all good law firms keep.
- Before going to see your lawyer, always ask the police officer in charge of your case to give you a copy of the Charge Sheets/Court Attendance Notice/Summons, the Police Facts Sheet, a Criminal Record History (if you have one) and a DVD of your interview with police (if you made one). By law these documents must be provided to you upon request. Your lawyer will need to see these documents to provide you with sound and accurate legal advice about the best road to take in your case. If you come to your lawyer without these documents, some Lawyers may charge you a fee to obtain these documents. Without these documents, it will be difficult for a lawyer to give you accurate legal advice.
- You should try to do some research before going to see your lawyer for the first time. The most important thing you should find out is the maximum penalty for the offence. It’s very easy to find out. Just go to www.austlii.nsw.gov.au and do a search. Finding out the maximum penalty will let you know how serious the offence is.
- Always ask your lawyer if they can charge a lump sum flat fee for your case. Most lawyers who specialise in Criminal Law will know approximately how much your case will cost so they will agree to a flat fee. This allows you to know and prepare your finances and also avoids the cases where you will be charge per minute for every phone call or task that is done. The bill charged on an hourly rate is almost always much higher.
- Avoid engaging criminal law firms that pay large amounts of money to advertise on Google or the media such as radio. Those law firms often appear on the first page of a Google search with a yellow ad tag next to them. Truth be it told that the best criminal Lawyers do not pay Google to advertise their services as they often get clients via word of mouth referrals. Paid advertising is costly and the law firms will often pass on the costs with much higher legal fees. Also a law firm that advertises it’s services does not necessarily mean they have the best criminal Lawyers. If you are thinking about engaging a criminal law firm, do look at how some of their past clients have reviewed them via independent review websites such as Google reviews, true local reviews and lawchoice.com.au. Most satisfied clients do not give reviews, but the ones who have received exceptional service will often write reviews to help others choose the right lawyers.