71-year-old Brisbane man charged with multiple domestic violence offences, including assault and deprivation of liberty. The Police reports that the man had forcibly entered a 68-year-old woman’s residence and proceeded to beat her with a wooden club. He, at the time, also threatened the woman. He was arrested by police a while later in Warwick.

The Police officially charged the Brisbane man with 13 offences including contravention of a domestic violence order.

An AVO breach occurs where a person has breached the conditions set out in their AVO. The purpose of these orders are to protect vulnerable persons, thus AVOs are essentially a list of special conditions set out by the Court in order to safeguard a ‘person in need of protection’ (PINOP).

What is an ADVO and APVO?

An Apprehended Violence Order (AVO) is an order made by the court to restrict the defendant from contacting or from doing certain acts to the applicant who is seeking protection. The court must be satisfied on the balance of probabilities that the applicant has a reasonable fear, or in fact fears, that the defendant will engage in behaviours such as personal violence, intimidation, or stalking.

There are mainly two types of AVO’s. These include:

1. Apprehended Domestic Violence Order (ADVO): An ADVO can be issued when there is a domestic relationship that exists between the parties. This refers to parties in a marriage, de-facto relationship, intimate relationship, a couple living in the same home, or even a relative such as a child or grandparent.

2. Apprehended Personal Violence Order (APVO): Meanwhile, an APVO is issued when a person is seeking protection there is no domestic relationship between the parties. This can include relationships such as neighbours, co-workers, or strangers.

What happens if there is a Breach of ADVO & APVO?

If a defendant breaches an apprehended violence order, the police can pursue criminal proceedings against them for the offence of contravening an apprehended violence order. The police may also provide a Court Attendance Notice stating that the defendant will need to attend court proceedings. The offence occurs when a defendant on an existing AVO fails to comply with one or more conditions listed in the AVO.

This offence is stated under s14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“the Act”):

“(1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence.”

The Act allows a jail sentence to be imposed on an offender who has breached an AVO. This can include options such as full-time imprisonment, or an alternative such as:

1. Intensive Correction Order (ICO)
2. Community Correction Order

• Conditional Release Order

1. Fine
2. Section 10 dismissal under the Crimes (Sentencing Procedure) Act 1999.

A person who has an AVO against them is not guilty of a criminal offence. Consequently, an AVO is not listed on their criminal record. However, if you are found guilty of breaching an AVO, the conviction will be recorded on your criminal history as a domestic violence offence. This has implications for your future as the offence can be used against you if you ever appear in court in the future for other allegations. This can particularly affect you if you are making a bail application or being sentenced for another offence.

If you have been charged with contravening an AVO, it is highly recommended that you speak to a criminal lawyer before speaking to the police, so you understand your legal rights and options. It is also possible that you may be arrested and refused bail, which may require you to make an urgent bail application in court.

Penalties:

The maximum penalty for breaching an apprehended violence order is 2 years imprisonment and/or 50 penalty units. As of 30 July 2020, each penalty unit amounts to $110.

It is also important to note that the use of violence, in any way, in breaching the apprehended violence order must result in a term of imprisonment.

Nevertheless, it is open to the Court to give a lesser sentence where there are mitigating factors or circumstances to the offence.

What the Prosecution must prove in court:

For the prosecution to be successful in an offence of contravening an apprehended violence order, they must prove the following elements beyond reasonable doubt:

1. A person knowingly
2. Breached a restriction or prohibition
3. In an apprehended violence order

Note that where an attempt to breach the AVO was not successful, it may still be considered an offence of contravening an apprehended violence order (s14(9) of the Act).

Possible Defences:

Where the prosecution is unable to prove the key elements of the offence above beyond reasonable doubt, the accused cannot be found guilty by the Court.

Nonetheless, the accused can put forward a legal defence. Legal defences are unique to the circumstances of the case but a general overview of defences available include:

1. Person was not present at Court when the order was made or was not served with the AVO
2. The breach was necessary to attend mediation

• Self-defence

1. Accidental breach, where the defendant unknowingly breached a condition of an AVO
2. Compliance with a Property Recovery Order made by the Court, which allows the defendant to retrieve their personal belongings from the property

If any of the defences listed applies to the defendant’s case, the charge can be dismissed.

If you have been arrested or the police are looking to interview you regarding an investigation, Pannu Lawyers is able to advise you of your rights at every step of the criminal investigation & trial process. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. If your matter is at Blacktown Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.

The above information is intended as general information and is not intended to be relied on as legal advice.