In NSW, it is an offence for a person who is required to comply with an Apprehended Violence Order (AVO) to breach (contravene) any condition of that AVO. A person may be charged if there is an AVO in place which prohibits them from doing certain things, if they break, or breach, any of those prohibitions. For example, all AVOs contain a condition prohibiting the person subject to the AVO from assaulting the protected person. If a person breaches their AVO by assaulting the protected person, they will likely be charged with Contravening an AVO as well as with assault.
Contravening an AVO is a serious offence that carries a maximum penalty of imprisonment for two (2) years and/or a fine of 50 penalty units. In NSW, a court can impose any of the following penalties for this charge:
- Prison Sentence
- Home Detention
- Intensive Corrections Order (previously Periodic Detention)
- Suspended Sentence
- Community Service Order (CSO)
- Section 10
The Offence of “Contravene Apprehended Violence Order”
The offence of ‘Contravene Apprehended Violence Order’ is set out in section 14(1), Crimes (Domestic and Personal Violence) Act 2007, which states:
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 Actions Might Constitute “Contravene Apprehended Violence Order”?
Each AVO must include a prohibition on: stalking; harassing; threatening; intimidating; or damaging the property of, the Protected Person or a person with whom they have a domestic relationship. Examples of behaviour which might amount to this offence being committed are:
- persistent contact through phone calls, text messages, or social media;
- threatening statements to the Protected Person;
- showing up at places where the Protected Person lives, works or otherwise attends regularly;
- damaging property belonging to the Protected Person or a person with whom they have a domestic relationship, even if they were not present at the time the damage was done or even if you and the Protected Person own the property together;
- attempting to do any of the above.
Further to the mandatory orders, an AVO can have additional conditions. Common additional conditions for an AVO include:-
- not residing with the Protected Person.
- not going within a certain distance of the Protected Person’s home, work or other specified place. For example, this may include family member’s homes or children’s schools;
- not contacting the Protected Person at all; and
What the Police Must Prove:
To convict a person of “Contravene Apprehended Violence Order” the police must prove beyond reasonable doubt that the person:
- was the subject of an enforceable Apprehended Violence Order;
- under that order, was prohibited from doing certain acts or acting in a certain way;
- contravened (or breached) that prohibition or order; and
- did so knowing the prohibition or order was in place.
Possible Defences to Contravene Apprehended Violence Order:
Under section 14(3) of the Act, it is a defence to the charge if the contravention of the AVO occurred in circumstances in which:
- contact with the propected person it was necessary to attend mediation; or
- the contact occurred in compliance with the terms of a property recovery order made by a Magistrate.
Furthermore, it is a defence to the section if you are able to show that you were not served a copy of the AVO, and where the AVO was made in court, you were not present in court.
Which Court Will Hear Your Matter?
This offence is a summary offence. This means that the matter must be finalised in the Local Court.
What are the Likely Penalties for Contravene AVO?
The penalty that will likely be imposed will depend on the circumstances of the offence. An offence of contravene AVO might be considered to be of lesser seriousness where the breach involves a person subject to a “no contact” provision of an AVO simply replying to a text message that the protected person had sent them, without any threats, aggression or abusive language. Such an offence might result in the offender being sentenced without conviction, or by way of a conviction or fine.
More serious examples of the offence, such as, contraventions by way of violence against the protected person, are likely to be dealt with much more seriously, for example by way of a jail sentence, Intensive Corrections Order or Community Corrections Order than breaches that involve contact only. Under section 14(4) of the Act, if you contravene an AVO with an act of violence, and are over 18, you are to be sentenced to a term of imprisonment unless a court orders otherwise.
If a court determines not to impose a period of imprisonment it must give its reasons for making that decision.
If you require legal advice in relation to contravening an AVO or any other legal matter please contact Armstrong Legal.
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.