The breach of an Apprehended Violence Order (AVO) is an offence under section 14 of the Crimes (Domestic and Personal Violence) Act 2007. It is a serious offence and carries a maximum penalty of 2 years imprisonment and a fine of $5,500. This is partly because it involves not only the breach of a court order, but also threatens the safety of those considered by the court to be vulnerable and in need of protection.
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What constitutes a breach of an AVO?
Exactly what conduct constitutes a breach will depend on the terms of the AVO.
The breach must be intentional and the offence only covers those who “knowingly” breach an AVO. For example, if an AVO prohibits a defendant from approaching or communicating with another person (the protected person), and the defendant intentionally visits the protected persons house, or telephones the protected person intentionally, that is likely to be a breach. However, if the defendant comes across the protected person in public inadvertently, the defendant has not necessarily breached the order. If, however, the defendant fails to move away from the protected person after the initial contact, that is likely to be held to be a breach.
In cases where it is the protected person who approaches the defendant, and the defendant continues the conversation and does not leave after the initial approach, even though it was the protected person who initiated the contact, the defendant may still be found to have breached the AVO if the AVO prohibits any contact. It is not a defence to argue that it was the protected person who approached the defendant.
Although all instances of breaching an AVO are considered serious, generally, those offences involving physical contact or threats will be considered the most serious.
If the breach involves some act of violence against a person, the court must consider a sentence of fulltime imprisonment (see below section on sentences).
A person is not guilty of this offence unless the prosecution can prove that the defendant was served with a copy of the AVO before the alleged breach, or if the AVO was made by a court, the person was present in court when the order was made. See s.14(2) of the Crimes (Domestic and Personal Violence) Act 2007. The prosecution normally rely on Affidavits of Service to prove that the AVO was served. Alternatively, they may rely on the recording or transcript of the court proceedings to prove that the defendant was present in court when the order was made.
As discussed above, it must be established that the defendant “knowingly” breached the AVO. It is a defence if the defendant can establish that they inadvertently breached the AVO or were not aware of the terms
Additionally, often the facts which the prosecution allege are disputed. For example, the defendant denies that the incident actually occurred or occurred exactly how the prosecution allege.
Will I go to jail?
Upon conviction, a person is liable to imprisonment for up to 2 years. However, the maximum penalty is for the most serious offender and usually reserved for someone who also has a past criminal history or where the breach involves actual violence.
For the full range of penalties that can be imposed, see our Sentencing Options page.
The likely penalty will depend on the nature of the breach, any extenuating circumstances, and other factors including whether the defendant has a criminal record or has demonstrated remorse or contrition.
If the offence involves actual violence, the court must impose a sentence of imprisonment unless the court orders otherwise. See s.14(4) Crimes (Domestic and Personal Violence) Act 2007.
As with any offence, even after a finding of guilt a court can still decide not to record a conviction.