This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Breach Apprehended Violence Order (AVO)
In NSW, the offence of 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 alone doe snot result in a court sentencing a person to imprisonment on a full time basis. However, if the accused has breached the AVO with an act of violence, or has a history of domestic violence offences, the court will seriously consider whether they should serve time in jail.
Often a charge of breach AVO has a second charge attached. For example, there may be an AVO in place that says that a person must not assault the person in need of protection (PINOP). If police have reason to believe they 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. A person is not guilty of the offence unless:
- They were served with a copy of the order, or
- They were in court when the court made the order
What Actions Might Constitute Breach AVO?
All AVOs must contain certain conditions, 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 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 conditions. 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 find a person guilty of breach AVO, the prosecution must prove each of the following matters beyond a reasonable doubt:
- There was an active prohibition on their conduct in a valid AVO.
- They 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 the 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
A person charged with this offence may validly argue in their defence:
- Their actions did not breach the AVO;
- There was no AVO in force.
Which Court Will Hear Your Matter?
This matter is a summary offence, meaning that it will be finalised in the Local Court
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.