In New South Wales, Apprehended Violence Orders (AVOs) work like a shield, keeping folks safe from violence, threats, and harassment. Breaking these orders can lead to serious trouble like criminal charges, fines, or even time behind bars. It’s super important for defendants, lawyers, and support workers dealing with domestic violence to get their heads around the kinds of AVO breaches, what happens when they’re broken, and any defences that might save the day.

This comprehensive guide will explore the intricacies of breaching an AVO in NSW, delving into the legislation, penalties, and common scenarios that can lead to a breach. We will also discuss the immediate consequences of an AVO breach, court-imposed penalties, and the defences available to those accused of contravening an AVO. By the end of this article, readers will have a clearer understanding of the legal landscape surrounding AVO breaches and the steps that can be taken to navigate this complex issue.

Understanding AVOs in NSW

AVOs are legal orders issued by the court to protect a person from violence, threats, harassment, and intimidation. The purpose of an AVO is to prevent further harm to the victim and ensure their safety. In NSW, there are two types of AVOs: Apprehended Domestic Violence Orders and Apprehended Personal Violence Orders.

Types of AVOs

Apprehended Domestic Violence Orders (ADVOs) are issued when the victim has a domestic relationship with the perpetrator, such as a spouse, de facto partner, family member, or someone they are in a domestic or intimate relationship with. ADVOs are designed to protect victims of domestic violence, which can include physical, emotional, psychological, sexual, and financial abuse.

Apprehended Personal Violence Orders (APVOs), on the other hand, are issued when the victim does not have a domestic relationship with the perpetrator, such as a neighbour, colleague, or stranger. APVOs are intended to protect individuals from personal violence, harassment, and intimidation by someone outside their domestic circle.

Common Conditions in AVOs

AVOs can include various conditions to protect the person in need of protection (PINOP). These conditions can be categorised as mandatory or additional conditions.

Mandatory conditions are standard in all AVOs and prohibit the defendant from:

• Assaulting, threatening, stalking, harassing, or intimidating the PINOP or anyone with whom the PINOP has a domestic relationship
• Intentionally or recklessly destroying or damaging property belonging to or in the possession of the PINOP or anyone with whom the PINOP has a domestic relationship

Additional conditions may be imposed by the court depending on the specific circumstances of the case. These can include:

• Prohibiting the defendant from approaching or contacting the PINOP
• Restricting the defendant’s access to premises where the PINOP lives or works
• Prohibiting the defendant from approaching the PINOP or specified premises within 12 hours of consuming alcohol or illicit drugs
• Prohibiting the defendant from possessing firearms or prohibited weapons

Understanding the types of AVOs and the conditions they can impose is crucial for both victims and defendants. Victims should be aware of the protection available to them, while defendants must understand the restrictions they must adhere to in order to avoid breaching the AVO.

Types of AVO Breaches

Breaching an AVO can occur in various ways. Understanding the different types of breaches is crucial for both the person protected by the AVO and the defendant. Some common types of AVO breaches include:

Direct Contact with the Protected Person

One of the most straightforward ways to breach an AVO is by directly contacting the PINOP. This can include:

• Making phone calls or sending text messages to the PINOP
• Sending emails, letters, or any other form of written communication
• Communicating with the PINOP through social media platforms
• Approaching or speaking to the PINOP in person

It’s important to note that even if the PINOP initiates contact, the defendant must not respond, as this would still constitute a breach of the AVO conditions.

Approaching or Stalking the Protected Person

Another common type of AVO breach involves physically approaching or stalking the PINOP. This can include:

• Following or watching the PINOP from a distance
• Loitering near the PINOP’s home, workplace, or other places they frequently visit
• Entering or attempting to enter the PINOP’s property without permission
• Engaging in any behaviour that causes the PINOP to fear for their safety

Breaching an AVO by approaching or stalking the PINOP can lead to more severe consequences, especially if the defendant’s actions are persistent or threatening.

Other types of AVO breaches may include:

• Contacting the PINOP through third parties, such as friends or family members
• Damaging or destroying the PINOP’s property
• Failing to surrender firearms or other prohibited weapons as required by the AVO conditions

Common Breach Scenarios

Breaching an AVO can occur in various situations, even when the defendant has no intention of violating the order. Understanding these common scenarios helps defendants avoid unintentional breaches and their serious legal consequences.

Accidental Encounters

Accidental encounters with a protected person can lead to AVO breaches in everyday situations. For instance, a defendant may unknowingly enter a shopping centre where the protected person is present. While simply being in the same location unintentionally is not necessarily a breach, any subsequent interaction could violate the AVO conditions.

A person cannot be found guilty of breaching an AVO unless they knowingly breach the conditions. However, if there is a ‘no contact’ condition and the defendant chooses to engage with the protected person after an accidental encounter, this would constitute a breach of the order.

Third-Party Contact

Third-party contact breaches occur when someone facilitates communication between the defendant and the protected person. Even if the protected person initiates contact through a friend or family member, responding to such communication can result in a breach of the AVO.

If there is a non-contact clause in the AVO, any form of indirect communication through intermediaries is prohibited. This includes asking others to pass on messages, relay information, or arrange meetings with the protected person.

The law is clear that a protected person cannot give permission to a defendant to have contact if the AVO conditions prohibit it. Even if the protected person consents to communication, the defendant must still comply with all AVO conditions to avoid criminal charges.

Immediate Consequences of Breaching an AVO

When a defendant breaches an AVO in NSW, they face immediate and serious legal consequences. A breach of AVO is a criminal offence that triggers a series of actions by law enforcement and the justice system.

Arrest and Charges

When police become aware of a potential AVO breach, they will investigate the incident and may arrest the defendant immediately. The police will collect evidence of the breach, including statements from the protected person and any witnesses. If there is sufficient evidence, the defendant will be charged with contravening an AVO under Section 14 of the Crimes (Domestic and Personal Violence) Act.

If the breach involves additional criminal conduct, such as assault or property damage, the defendant may face multiple charges. Police may refuse bail at the police station, requiring the defendant to make an urgent bail application in court. The severity of the breach and any history of domestic violence will influence police decisions about arrest and bail.

Court Attendance

Following a breach, the defendant will receive a Court Attendance Notice requiring them to appear before the Local Court. The matter will be treated as a serious criminal offence, and the defendant must attend court to answer the charge. If found guilty, the breach will be recorded on their criminal record, potentially affecting future employment opportunities and legal proceedings.

The court will examine the circumstances of the breach, including whether it involved violence against the protected person. If violence was involved, the court must impose a jail sentence unless there are compelling reasons not to do so. The defendant’s prior record and compliance with the AVO will also be considered when determining the appropriate penalty.

Court Penalties for Breaching an AVO

Breaching an AVO carries significant legal consequences. The maximum penalty for contravening an AVO is 2 years imprisonment and/or a fine of up to $5,500.

Fines and Imprisonment

If found guilty of breaching an AVO, the court must impose a jail sentence if the breach involved an act of violence against a person. The severity of the penalty typically depends on factors such as the nature of the breach, whether violence was involved, and the defendant’s history of domestic violence offences.

For consecutive minor breaches that violate AVO conditions, the court may impose fines or other penalties like good behaviour bonds. However, if the breach involves physical violence or if the defendant has a history of domestic violence offences, the court will seriously consider imposing a term of imprisonment.

Impact on Criminal Record

A conviction for breaching an AVO will appear on your criminal record. This can have serious long-term consequences, particularly affecting employment opportunities and the ability to pass Working With Children Checks. If convicted of a domestic violence offence, the conviction will be specifically marked as a domestic violence offence on your record.

The presence of domestic violence offences on your record can impact future legal proceedings, including bail applications and sentencing for any subsequent offences. Police may also use previous domestic violence convictions as grounds for taking out new AVOs against you in the future.

Available Defences for AVO Breach Charges

A defendant charged with breaching an AVO may have several legal defences available. The success of these defences depends on the specific circumstances of each case and the evidence available.

Lack of Knowledge

A person cannot be found guilty of breaching an AVO unless they knowingly breached the conditions. If the defendant was not present in court when the AVO was made and had not been served with a copy or advised of its existence, this provides a valid defence. For example, if a defendant was not given the AVO papers listing the conditions, they may have a defence even if the AVO was made in their absence.

Self-Defence and Duress

Self-defence applies if the defendant breached an AVO condition because they were acting to protect themselves, their property, or another person. A defendant may also have a defence if they were essentially “forced” to breach the AVO conditions by another person under duress. For instance, if someone threatens violence unless the defendant contacts the protected person, this could constitute duress.

The court will examine whether the defendant’s actions were reasonable and proportionate to the threat they faced. If the breach involved violence, the court must be satisfied that the use of force was necessary for self-defence rather than retaliation or aggression.

Conclusion

Breaching an AVO in NSW carries serious legal consequences that can significantly impact a person’s life and future. The courts and law enforcement take these breaches seriously, recognising their role in protecting vulnerable individuals from violence, harassment, and intimidation. Understanding the gravity of AVO breaches and their consequences is essential for both defendants and protected persons.

Whether intentional or accidental, breaching an AVO can result in criminal charges, fines up to $5,500, imprisonment for up to two years, and a permanent criminal record. The severity of these consequences reflects the law’s commitment to ensuring the effectiveness of AVOs in protecting individuals from domestic and personal violence. For those subject to an AVO, strict compliance with all conditions is crucial to avoid these serious legal repercussions.

Trust our team to provide expert legal solutions—call us today.

Frequently Asked Questions