Domestic violence is a serious issue and often comes with heftier criminal penalties. Some key offences often charged against a person who breaches their ADVO includes stalking or intimidation and knowingly contravening an ADVO (sections 13 & 14 Crimes (Domestic and Personal Violence) Act 2007 (NSW)) and common assault (section 61 Crimes Act 1900 (NSW)).

The above charges are common in domestic violence cases, particularly in cases where physical abuse is rampant in the home. One example is Elizabeth Maclean’s case, where her husband has, over the years, punched her, threatened to hurt her with knives on multiple occasions and she was repeatedly punched, pushed into a room, and locked in for an extended period of time. Another example is where an Australian Fortnite player, Mr Munday, had beaten his pregnant wife while on webcam during a Fortnite game.

Stalking or Intimidation

Stalking or intimidating by a person whom you have a domestic relationship is punishable by a maximum penalty of 5 years or 50 penalty points or both (s13(1) Crimes (Domestic and Personal Violence Act 2007 (NSW)). The elements for this offence are:

• A person
• Stalks or intimidates another person

Stalking a person can be defined as following a person around, watching or frequently visiting a person’s residence, work or any other place they frequently go to socialise as well as reaching out to the person via online & phone communication (s8 Crimes (Domestic and Personal Violence) Act 2007 (NSW)).

Intimidation, on the other hand, is defined as acts which amount to harassment or molestation, approaching other persons in a way which causes the person to fear for their safety as well as any conduct which makes a person fear themselves, property or others being hurt (s7 Crimes (Domestic and Personal Violence) Act 2007 (NSW)).

• Intention

The prosecution must prove that the person intended to cause the other person to fear for mental or physical harm.

• Causing the person to fear physical or mental harm

There need not be any proof that real physical or mental harm had occurred. This element requires the prosecution to prove that a reasonable person would be in fear of either physical harm or mental harm. For example, the perpetrator may threaten the victim with a knife as per Elizabeth Maclean’s situation, which would constitute fear of physical harm. An example of fear of mental harm would be threatening to lock someone into a closet or enclosed room, as it could result in high anxiety, particularly where the person is claustrophobic, and thus cause psychological harm.

Assault

Assaulting a person without occasioning bodily harm accrues a maximum penalty of two years imprisonment (s61 Crimes Act 1900 (NSW)). The elements of assault are as follows:

• Committed a physical act OR threatened a physical act

A physical act includes any non-consensual physical touching such as punching, slapping, spitting  and other acts of violence. Assault can be committed by the act of physically touching a person or by threatening violence on another person.

There are multiple examples of common assault in Elizabeth Maclean’s case. One example is where Colin had stabbed the knife into the bed whilst Elizabeth was sitting there is an example of assault by committing threatening the physical act of stabbing her. Another example is where Elizabeth had been punched on the head whilst in the bathroom, which would constitute a common assault by committing a physical act.

• Intentionally or Recklessly

“Intentionally”, in this context, refers to a person who intended to cause violence or threaten to cause violence to the other person.

“Recklessly” refers to where the person ought to have known that their act would have incited the fear of immediate physical violence on the other person. This more generally means that a person would have foreseen the risk that the other person, in seeing the act, was likely to fear immediate violence (Edwards v Police). For example, a person saying “I will beat you up right now” can constitute common assault, but equally so will raising a fist in front of another person’s face (Edwards v Police).

• Towards another person

The physical act must be done to another person.

Knowingly Contravening an ADVO

For this offence to be charged, a person must already have an ADVO against them, filed by their victim. An ADVO generally has restrictions or prohibitions placed on the person, for example, they are prohibited from approaching the protected persons through any means including over the internet (s35(2) Crimes (DPV) Act 2007 (NSW))or prohibitions against assaulting, stalking, or threatening the protected person/s (s36 Crimes (DPV) Act 2007 (NSW)). The maximum penalty for this offence is imprisonment of 2 years and/or 50 penalty units. The elements for this offence are as follows:

• A person

Must be an individual and not a company.

• Knowingly
• Contravening

A person, to contravene the ADVO, must do acts which amount to the prohibitions in the ADVO such as assaulting, stalking and intimidating the protected person/s.

• ADVO prohibitions/restrictions

An ADVO must be made by the court and a copy must be served on the person alongside a copy of the court order. The ADVO will include restrictions and prohibitions which the judge has deemed justified to place on the person. Some key prohibitions are set out in s36 Crimes (DPV) Act 2007 (NSW): the defendant is prohibited from:

• Assaulting or threatening the protected person or a person which whom that protected person has a relationship with
• Stalking, harassing, or intimidating the protected person or a person with whom the protected person has a domestic relationship
• Intentionally or recklessly destroying or damaging any property that belongs to, or is in possession of, the protected person or a person with whom the protected person has a domestic relationship.

Therefore, if the above offences of common assault and stalking and intimidation have been proved, it is fairly certain that a person with an ADVO has breached its terms and are therefore subject to a charge under s14(1) Crimes (DPV) Act 2007 (NSW)).

For example, in Elizabeth Maclean’s case, if she had an ADVO against her husband Colin, he would have been charged with knowingly contravening an ADVO by perpetrating the acts of violence such as intimidating Elizabeth with a knife and punching her on the head on multiple occasions.

Domestic Violence is a serious issue, if you are experiencing domestic violence, we encourage you to reach out to the police or the NSW Domestic Violence line on 1800 65 64 63.

Pannu Lawyers extensively practice in Criminal Law and regularly appear at Parramatta, Penrith, Mt Druitt, Burwood, and Blacktown Courts throughout New South Wales. If your matter is at Blacktown Local 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.