In New South Wales, there is no specific offence of ‘domestic violence’. Rather, acts of domestic violence may constitute other criminal offences, for example, Common Assault or Intimidation, where they are committed by one person upon another person with whom they are in a ‘domestic relationship’.
When a person gets charged with a criminal offence against a person with whom they share a ‘domestic relationship’, the offence will usually be filed as a domestic violence offence. This categorisation ensures the court is aware that the offence is alleged to have occurred in a domestic violence context. If the court records a conviction, it can record it as being domestic violence-related offence. This will trigger other legislative requirements and processes.
What is a Domestic Relationship?
A domestic relationship includes people who are, or have been:
- de facto;
- in an intimate personal relationship (whether or not the intimate relationship is, or has been, of a sexual nature);
- living in the same household or residential facility;
- in a relationship involving dependence on the ongoing paid or unpaid care of the other person;
- relatives; and
- in cases of an Aboriginal or Torres Strait Islander person, an extended family member or kin of the other person.
Apprehended Domestic Violence Orders
Where police suspect a domestic violence offence has been committed, they may make an application for an apprehended domestic violence order. As detailed, this is an application only. Police do not have the authority or power to grant a final Apprehended Domestic Violence Order. They do, however have the power to make a provisional order. This means that from the moment police serve a defendant with a provisional order, that defendant must comply with the Order. The application will then be listed before the court.
A provisional order and an application for an apprehended domestic violence order can be made by police even where there is no associated criminal charge.
However, where police do charge someone with a domestic violence offence, they almost always make an application for an apprehended domestic violence order at the same time, unless an Order already exists.
Proceedings for Apprehended Domestic Violence Orders are often listed at the same time as, or adjourned to link up with, any associated criminal charge. If there is no charge, they proceed as an application only. Read more about Apprehended Violence Orders (AVOs).
Procedural Requirements for Domestic Violence Offences
When police make a provisional Apprehended Domestic Violence Order against a defendant, the matter is listed in the next available domestic violence list at the relevant Local Court. When a person gets charged with a domestic violence offence and/or an application for an Apprehended Domestic Violence Order (or provisional order) is made, the person will usually be required to attend court within a week. Sometimes, it is as early as the very next day.
It is important to get legal advice before appearing at court. If this can’t be done, an adjournment for one or two weeks can be sought for the purpose of obtaining legal advice.
Domestic Violence Matters Heard Quickly
The Local Court of New South Wales recognises the need to progress domestic violence offences through the Court quickly and has implemented a Practice Note which varies the procedural requirements for domestic violence matters. In relation to domestic violence matters, the Practice Note requires a Magistrate to set the matter down for hearing upon the plea of not guilty being entered. The Magistrate can make brief service orders in the intervening period; however, the matter is not adjourned for a reply date. This means that domestic violence matters are listed for hearing much quicker than other types of criminal matters.
When a person pleads not guilty to a criminal offence, usually the court makes orders for the service of the brief of evidence on the defendant or their legal representative before adjournment the matter for a reply date. On the reply date, if the plea of not guilty is maintained, the matter will then be adjourned so it can be heard at a later time.
Legislative Requirements for Sentencing Domestic Violence Offenders
Where a court sentences a person for a domestic violence offence, they are required to take into account certain matters. Under section 4A of the Crimes (Sentencing Procedure) Act 1999, a court sentencing a person for this offence must impose either a sentence of full-time detention (gaol) or a supervised order. If the court is satisfied that a different sentencing option is more appropriate, they can impose that sentence, however, they must give reasons for doing so.
In accordance with section 4B of the Crimes (Sentencing Procedure), Act 1999 (NSW) Court must consider the safety of the victim before imposing a Conditional Release Order, Community Corrections Order or Intensive Corrections Order. A court cannot impose an Intensive Corrections Order on a domestic violence offender unless it is satisfied that the accuser, or any person who is to reside with the offender, is adequately protected.
Additional legislative provisions require a court to impose a sentence of imprisonment for a contravention or breach of an apprehended domestic violence order, where that contravention or breach involves an act of violence.
These legislative provisions reflect the seriousness with which Magistrates and Judges treat domestic violence offenders. It is important that legal advice is obtained by anyone charged with domestic violence offences before participating in an interview or attending court in relation to the allegations.
Offence Specific Information
The below offences are commonly charged after allegations of domestic violence.
- Common Assault;
- Assault Occasioning Actual Bodily Harm;
- Reckless Wounding;
- Reckless Grievous Bodily Harm;
- Stalking or Intimidation;
- Contravene Apprehended Violence Order;
- Use Carriage Service to Menace, Harass, Offend; and
- Choke with intent.
Advice for Victims
Our lawyers often provide advice to victims of domestic violence who have questions in relation to the action police have taken on their behalf, attending court to give evidence and/or the possible outcome of proceedings. We can also assist victims wanting to make Victims of Crime Assistance claims or take civil action against the offender. We cannot, however act or provide advice to both a defendant and a victim. If a conflict arises, we can, however, refer you to other reputable firms.
If you require advice on domestic violence orders or any other legal matter call us on 1300 038 223 or send us an email.
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.