When an Apprehended Violence Order (AVO) is issued in New South Wales, it operates as a legal safeguard designed to protect individuals from various types of harm and/or harassment. Contravening or breaching an AVO is a serious offence with significant legal consequences. Understanding what constitutes a breach and its implications is crucial if you are involved in such a situation.
You might feel overwhelmed or confused about what actions could lead to a breach. Knowing your rights and responsibilities can help to navigate this challenging scenario and avoid further complications.
Key Takeaways
- Contravening an AVO in New South Wales is a serious criminal offence pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW), with strict penalties including up to two years’ imprisonment and/or fines.
- An AVO breach is considered a strict liability offence, meaning that intent or recklessness are not required for conviction, only knowledge.
- Consequences of breaching an AVO may include a criminal conviction and a monetary penalty and/or a term of imprisonment, particularly for violent or repeat violations.
- Defences to an AVO breach may include not being aware of the order, honest mistakes of fact or accidental breaches.
- If accused of breaching an AVO, seeking legal advice is strongly recommended to understand your rights, build a defence, and navigate court processes effectively.
Relevant Legislation
The offence of ‘Contravene Apprehended Domestic Violence Order’ is set out in the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Section 14(1) of the Act states that:
A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence.
Consequences of Contravening an AVO in New South Wales
Breaching an AVO in New South Wales leads to serious consequences.
Section 14(1) of the Act sets out the maximum penalty for the offence, being full-time imprisonment for a term of two years and/or a fine of up to $5,500.00.
If a breach involves an act of violence, section 14(4) requires Courts to impose a sentence of full-time imprisonment, unless specific exceptions apply.
Criminal Record Implications
If you are convicted of contravening an AVO, it will result in a criminal record. A criminal record may affect numerous aspects of a person’s life, such as employment eligibility and professional licences.
Variations of the AVO
Contravening an AVO may lead to the Court varying the AVO by adding further protective orders or extending the period which the order is to remain in force.
Bail and Future Legal Proceedings
Contravening an AVO often results in an immediate arrest and potential denial of bail. As an AVO is an order of the Court, if it is breached, Courts may place stringent conditions on any future bail agreements.
Will I Be Required to Attend Court for a Breach of AVO?
If you are charged with contravening an AVO, you will be required to attend Court.
Failure to attend court without a reasonable excuse can result in significant legal repercussions. Specifically, the Court may issue a warrant for your arrest, and any bail previously granted may be revoked. It is crucial to seek legal advice as soon as possible if you are uncertain about your obligations to attend.
If the Police issue you a Court Attendance Notice (CAN), this will specify the scheduled Court date and location. It is imperative to carefully review these details and prepare accordingly.
Is a Conviction Likely?
Whether a conviction will be recorded for contravening an AVO depends on the circumstances surrounding the case.
When making a decision, the Court will have regard to the circumstances in which the offence was committed and other factors including but not limited to the person’s character, antecedents, and whether the person suffers from a mental health condition.
Possible Defences for AVO Breach
A number of defences may be available depending on the facts surrounding the alleged breach, including but not limited to:
Lack of Knowledge or Awareness of the AVO
If you were not present in Court when the AVO was issued, and you had not been properly served with a copy of the order or otherwise made aware of its existence, you may have a valid defence. For a breach to occur, the accused person must have knowledge of the AVO and its conditions.
Error of Fact
An “error of fact” defence may apply if you acted under an honest and reasonable misunderstanding of the facts. The key is that the mistake must be reasonable and made in good faith, you must have acted in a way that a reasonable person in your position might also have acted.
For example: You may have reasonably believed that the protected person no longer worked at a specific location and therefore entered that location, not realising the protected person was still employed there.
Unintentional Actions (Accidental Breach)
In cases where the breach was accidental or unintentional, such as inadvertently entering the same public area as the protected person, this may not constitute a valid breach of the AVO.
For example: If the AVO prohibits you from being within 100 meters of the protected person, but you unknowingly enter a café where the protected person is already present. If you immediately leave upon realising the mistake, you may argue there was no intentional breach.
Engagement by the Protected Person
It is important to understand that the actions of the protected person do not invalidate or nullify the AVO.
For example: If the AVO prohibits you from communicating with the protected person, even if the protected person initiates communication with you, you are still bound by the terms of the AVO.
Engaging with the protected person in such circumstances could still lead to a breach of the order and expose you to significant legal penalties.
Understanding the strict nature of AVOs in NSW can help you avoid breaches. Defending an AVO breach requires a thorough understanding of both the specific conditions of the AVO and the factual circumstances surrounding the alleged violation.
If any of the aforementioned defences — lack of knowledge, error of fact or unintentional breach apply, it may be possible to avoid legal consequences. Seeking legal advice is essential if you’re unsure about any aspect of your obligations or if you find yourself in a situation where the AVO conditions are at risk of being violated. Our expert lawyers at Conditsis are here to help – contact us today (02) 4324 5688.
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