Breach of an AVO
Section 14 of the Crimes (Domestic and Personal Violence) Act 2007 makes it illegal to breach or violate an Apprehended Violence Order (AVO). It’s a serious crime with a possible sentence of two years in prison and a fine of $5,500. This is mainly because it includes not only disobeying a court order but also jeopardises the safety of people deemed vulnerable and in need of protection by the court.
What is a Breach of an AVO?
The conditions of the AVO will determine exactly what constitutes a breach.
The violation must be deliberate, and the charge only applies to individuals who “knowingly” violate an AVO. For example, if an AVO prevents a defendant from visiting or interacting with another person (the protected person), a violation is likely if the defendant visits the protected person’s home or calls the protected person on purpose. However, if the defendant accidentally stumbles across the protected person in public, the defendant is not necessarily in violation of the order. If, after the initial contact, the defendant does not walk away from the protected person, that is likely to be considered a breach.
Even if the protected person approaches the defendant and the defendant continues the conversation and does not depart after the initial approach, the defendant may be held to have violated the AVO if the AVO prohibits any contact. It is not a defence to claim that the defendant was approached by the protected person.
Although all breaches of an AVO are regarded as significant, those involving physical contact or threats are generally considered the most serious.
The court must consider a sentence of full-time imprisonment if the breach involves some form of violence against a person (see below section on sentences).
The prosecution must prove the following in order for you to be found guilty of violating an AVO:
- Infringed on an AVO’s condition or restriction
- You knew you were breaking the law when you did it (i.e. the breach was not accidental)
The maximum penalty for violating an AVO is two years in prison and/or a $5,500 fine, so if you have been charged with violating an AVO, you should consult with a lawyer who has expertise representing individuals in similar situations.
At Law By Dan, our criminal lawyers will be able to tell you if you have a defence to the allegations that could excuse or explain your actions.
Will I have to go to court if an AVO is violated?
Because a person who has an AVO against them has not committed a crime, the AVO is not recorded on their criminal record. In NSW, however, breaking an AVO is a criminal offence.
If you breach an AVO and are charged by the police, you may be arrested or issued a Court Attendance Notice (CAN). A person who has been arrested and taken into custody by the police may be required to ask for bail. The CAN specifies when you must appear in court.
As a summary offence, a violation of an AVO will be addressed in the Local Court.
What about unintentional breaches?
There may be times when you inadvertently break an AVO. For instance, you could be in a shopping centre without realising the protected person is present. A defendant cannot be found guilty of violating an AVO unless they did it knowingly.
In some cases, the protected person may contact you to request assistance. If this occurs, you should get legal assistance as quickly as possible before responding to avoid violating the AVO.
This is because, if the AVO imposes a non-contact requirement, responding to a text message from the protected person may be prohibited. A protected person cannot give the defendant permission to violate the AVO.
A protected person cannot be held guilty of assisting, abetting, counselling, or soliciting a person to breach an AVO, according to section 14 of the Crimes (Domestic and Personal Violence) Act 2007.
Breach of an AVO’s defences
The prosecution must show that the defendant was served with a copy of the AVO prior to the alleged breach, or that if the AVO was issued by a court, the individual was present in court when the order was issued. The Crimes (Domestic and Personal Violence) Act 2007 has a section 14(2). Affidavits of Service are commonly used by the prosecution to prove that the AVO was served. They could also rely on a tape or transcript of the court proceedings to show that the defendant was present when the order was issued.
As previously stated, it must be proven that the defendant “knowingly” violated the AVO. If the defendant can show that they mistakenly broke the AVO or were unaware of the terms, they have a defence.
Furthermore, the facts asserted by the prosecution are frequently contested. For example, the defendant may claim that the incident never happened or that it happened exactly as the prosecution claims.
If you breach your AVO, the matter will be brought before the Local Court. The magistrate has the authority to impose a penalty if you plead guilty or are found guilty of the accusations. The following punishments may be imposed:
- Section 10 Dismissal
- Community Correction Order
- Intensive Correction Order
- Prison
- Intensive Correction Order
In the end, the type of penalty you receive will be determined by the facts and circumstances of your case, as well as the severity of the violation.
Our criminal defence lawyers at Law By Dan routinely represent clients in ‘contravene AVO’ cases and fight hard to protect their rights by presenting all evidence in a compelling manner to buttress their case.
Our lawyers have often been able to help clients avoid lengthy prison sentences by persuading magistrates to treat ‘contravene AVO’ cases leniently, despite the fact that the law states that anyone who contravenes an AVO by using physical violence should be sent to prison.
Do You Need an AVO?
If you require an AVO, the following are the usual steps.
There will be short ‘mention’ dates in court prior to the main hearing, which are administrative items to keep your proceedings on track and ready for the major hearing.
If you believe you need protection right away when you first come before the magistrate, you can request an interim AVO.
This is a temporary AVO that will be in effect until the hearing on the AVO.
You must show evidence of your need for the order during the AVO hearing. It is critical that you prepare for your hearing.
Consider all of the specific instances that have prompted you or your children to be concerned about their safety.
It’s critical to remember when they happened and to try to remember every detail.
Past events, threats, stalking episodes, or perhaps the defendant moved to a place closer to you and this alone makes you fear for your safety are all reasons to dread future violence.
If other witnesses are available, you can call them or produce images to support your case. This is recommended since any proof other than your word enhances credibility.
The defendant has the right to present their case and cross-examine any of your witnesses.
The court weighs all of the evidence before deciding whether or not an AVO should be issued, and if so, what conditions should be imposed.
The final AVO is issued at this point.
It lasts for 12 months or as long as the court decides.
It’s also worth noting that you can change or cancel an AVO after it’s been issued.
When you get an AVO, the defendant has to follow a set of rules.
If the offender violates or breaches those terms, he or she will be arrested by the police and sentenced by the court.
It’s a good idea to see a criminal lawyer who has dealt with AVO cases for more thorough guidance concerning your individual circumstances.
