Breach avo - domestic violence order
In NSW, Breaching an Apprehended Violence Order (Breach AVO) carries a maximum penalty of 2 years imprisonment and/or a fine of 50 penalty units.
In most cases a charge of Breach AVO is not enough for a court to sentence someone to imprisonment on a full time basis. However, if you have breached the AVO with an act of violence, or if you have a history of domestic violence offences, the court will seriously consider whether you should serve time in jail.
In NSW, a court can impose any of the following penalties for a breach AVO charge.
- Prison Sentence
- Home Detention
- Intensive Corrections Order (ICO)
- Suspended Sentence
- Community Service Order (CSO)
- Community Corrections Orders (CCO)
- Good Behaviour Bond
- Section 10A
- Conditional Release Order (CRO)
- Section 10
Often a charge of Breach AVO has a second charge attached. For example, there may be an AVO in place that says that you must not assault a person. If police have reason to believe you have in fact assaulted that person, they will usually lay a charge of Breach AVO as well as a charge of Assault.
Whilst Breach AVO is a serious charge in and of itself, an assault charge where the assault is alleged to breach an AVO is even more serious.
The Offence of Breach AVO:
The offence of Breach AVO is contained in section 14 of the Crime (Domestic and Personal Violence) Act 2007. It reads as follows:
A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence.
What if I didn’t know about the AVO?
Section 14 provides some defences to the offence of Breach AVO. You are not guilty of the offence unless:
- You were served with a copy of the order, or
- You were in court when the court made the order
What Actions Might Constitute Breach Avo?
All AVOs must contain Order 1(a) – (c), otherwise referred to as the ‘mandatory orders’. These Orders prohibit the Defendant in the AVO from: assaulting, threatening, stalking, harassing, intimidating or destroying/damaging the property, of the Person in Need of Protection. Doing any one of those things constitute a breach of the AVO.
AVOs may also contain additional orders that can be tailored to each individual circumstance, examples of some of the additional orders that can be put in place are:-
- Not to contact the PINOP, except through a legal representative or for a particular reason;
- Not to approach the PINOP within twelve hours of consuming intoxicating liquor and/or drugs;
- Not to approach the PINOP’s home, work or any other stated place;
- Not to be within a specified distance of the PINOP’s home, work or any other stated place.
It is critical that you read through your AVO paperwork carefully and understand the specific conditions that relate to you. If you knowingly perform any one of the prohibited actions listed in the AVO, you could be charged with Breach of AVO.
It is also important to remember that all the conditions cover not only the PINOP listed in the document, but anyone they have a domestic relationship with. This covers current and past partners of the PINOP; relatives and family members as well as people who lived with or are living with the PINOP.
What the Police Must Prove?
To convict you of Breach AVO, the prosecution must prove each of the following matters beyond a reasonable doubt:
- There was an active probation on your conduct in a valid AVO
- You breached that prohibition
Can the protected person consent to you breaching the AVO?
No. This means that the following are all illegal:
- Where there is a non-contact clause – replying to a text message
- Where there is a prohibition on going to a person’s house – accepting their invitation to visit
- Where there is a prohibition on being near someone within 12 hours of drinking – drinking a beer they offered to you
- Where there is a prohibition on living with someone – allowing them to move into your place
Possible Defences for Breach AVO:
Possible defences to a Breach AVO charge include but are not limited to:
- Deny your act breached the specific terms of the AVO
- Denying an intention to breach the AVO
- Denying knowledge of the AVO
Which Court Will Hear Your Matter?
This matter is a summary offence, meaning that it will be finalised in the Local Court
Types of penalties:
Home Detention for a breach avo charge: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.
Intensive corrections order for a breach avo charge (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.
Suspended sentence for a breach avo charge: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.
Community service order for a breach avo charge. (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.
Good behaviour bond for a breach avo charge: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.
Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.
Fines for a breach avo charge: When deciding the amount of a fine for a breach avo charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.
Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.
Section 10 for a breach avo charge: avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.
WHERE TO NEXT?
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.