Contravening an Apprehended Violence Order (AVO) is a criminal offence in New South Wales. However, recent changes to NSW law mean that not all breaches of an AVO are now treated in the same way.
New offences have been introduced for more serious ADVO contraventions, including breaches committed with an intention to cause harm or fear and repeated breaches occurring within a short period. These changes mean that a person accused of breaching an ADVO could face significantly greater penalties where the circumstances of the alleged contravention are considered more serious.
What is an ADVO?
An Apprehended Domestic Violence Order (ADVO) is a court order designed to protect a person from domestic violence, intimidation, or stalking. An ADVO can impose restrictions on the person it is made against. Depending on the circumstances, these restrictions may prevent a person from:
- Contacting or approaching the protected person,
- Attending certain locations,
- Communicating with the protected person by phone, text message or social media,
- Damaging or interfering with property,
- Residing with the protected person, or
- Engaging in other conduct prohibited by the order.
It is important to understand exactly what an ADVO prohibits. Even conduct that may appear relatively minor can constitute a criminal offence if it is knowingly in contravention of a restriction imposed by the order.
New penalties for contravening an ADVO
A more serious offence applies where a person knowingly contravenes an ADVO with the intention of causing the protected person physical or mental harm or causing them to fear for their own safety or the safety of another person. This offence is contained in s 14(1A).
The maximum penalty is 3 years’ imprisonment and/ or $11,000 (100 penalty units).
Importantly, this offence contains an additional mental element. It is not enough for the prosecution to establish that an ADVO was knowingly breached. It must also establish the relevant intention concerning harm or fear. For example, an alleged breach involving repeated unwanted contact may be treated more seriously if the prosecution alleges that the contact was deliberately intended to fight or cause psychological harm to the protected person.
Additionally, the reforms introduced an offence for the persistent or repeated contravention of an AVDO.
Under s 14 (1C), an offence may be committed where a person knowingly contravenes an ADVO and has, on at least two other occasions within the preceding 28 days, knowingly contravened prohibitions or restrictions in specified ADVOs.
The provision also requires the statutory circumstances concerning the likely impact of the conduct on the established. A reasonable person must consider the conduct likely, in all the circumstances, to cause the protected person physical or mental harm, or to cause them to fear for their safety or the safety of another person.
The maximum penalty is 5 years’ imprisonment and/or $16,500 (150 penalty units). This represents a substantial increase compared with the minimum penalty for the standard contravention offence.
The reforms, therefore, create a significant distinction between an ordinary breach and conduct involving an alleged intention to cause harm or fear or repeated breaches.
What does ‘knowingly contravening’ an ADVO mean?
A person cannot simply be convicted because the conduct happened to be inconsistent with an AVO. Section 14 contains requirements concerning the person’s knowledge of the order and the relevant prohibition or restriction.
There are also circumstances in which a person is not guilty of the offence because they were not properly served with the order or, where applicable, were not present when the order was made.
What should you do if you have been charged with contravening an ADVO?
If you have been charged with contravening an ADVO, it is important to obtain legal advice before entering a plea.
A lawyer can examine:
- the exact terms of the ADVO;
- whether you were properly served with the order;
- what you allegedly did to breach the order;
- whether the prosecution can establish that the contravention was knowing;
- whether the evidence establishes the additional intention required for s 14(1A);
- whether the requirements for repeated contraventions under s 14(1C) are satisfied;
- the dates and circumstances of any previous alleged contraventions;
- whether there is evidence contradicting the allegation; and
- whether the charge should be defended, negotiated or resolved by a plea of guilty.
The distinction between the three offences can be significant because the potential maximum penalty increases from 2 years to 3 years, and ultimately to 5 years’ imprisonment, depending on the circumstances.
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