Domestic & Personal Violence
There is no specific offence of domestic violence in NSW. Offences concerning domestic violence can be found in the Crimes (Domestic and Personal Violence) Act 2007 (NSW). These offences relate to offences associated with a domestic relationship or breaches of an apprehended violence order (AVO).
These issues can range from unwanted communications such as phone calls or text messages to serious infliction of physical harm within the home.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond reasonable doubt:
You were or are in a domestic relationship with the complainant
You committed the offence you are charged with
Section 5 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) outlines a domestic relationship to include:
Spouses, intimate partners, or former partners
Any family member with whom the person shares or has shared a domestic relationship with
An ex-partner’s new partner
Any person who is part of the extended family or kin according to the indigenous kinship system of the person’s culture
is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person
Being charged with an offence of this category is serious and can be a stressful and complicated experience. At Criminal Lawyers – Defending You, we are experienced in defending domestic violence-related charges and defeating or amending AVO applications.
Apprehended Violence Order (AVO)
An apprehended violence order (AVO) is a court order which aims to protect victims of domestic violence or a person in need of protection when they are fearful of future violence or threats to their safety. Being subject to an AVO can significantly influence your daily life, restrict employment opportunities, and may affect your ability to keep in contact with loved ones. At S.A.S Lawyers, our team can assist in the withdrawal of unfair AVO applications or manage the restrictions in place to enable you to maintain a normal life.
Police may make a ‘Police AVO’ when they are concerned about the welfare or safety of a person in need of protection (PINOP), even if this is against the PINOP’s intentions. Alternatively, the AVO may be made by the PINOP themselves, known as a ‘Private AVO’.
An AVO is not a criminal charge, therefore it will not appear on your criminal record. It is an order which places restrictions on your behaviour and actions. There are two types of AVOs:
Apprehended Personal Violence Order (APVO)
Apprehended Domestic Violence Order (ADVO)
Apprehended Personal Violence Order (APVO)
An APVO is issued in cases where there is no domestic, intimate, or family relationship between the accused and complainant. Common examples include neighbours, work colleagues, friends, acquaintances, or any other circumstance where an individual believes they are being stalked, harassed or they are a victim to intimidation by another person.
Apprehended Domestic Violence Order (ADVO)
An ADVO is issued where the accused and complainant have an existing domestic, intimate, or family relationship. Common examples include being married, de-facto or intimate relationships, parent and child, relatives, and an elderly person’s carer or guardian.
Conditions of an ADVO
An ADVO has three mandatory conditions:
You must not assault or threaten the person for whom an ADVO (protection) is granted.
You must not stalk, harass, or intimidate the protected person.
You must not destroy or cause any damage to the property of the protected person.
The offence of contravening an ADVO is set out under section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
What Must the Prosecution Prove?
If you breach an ADVO, the Prosecution must prove these elements beyond a reasonable doubt:
You were prohibited to act in a certain way under an ADVO.
You contravened that prohibition and;
Did so knowing the prohibition was in place.
Maximum Penalties
The maximum penalty is a fine of 50 penalty units ($5,500) and/or 2 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on your individual circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Possible defences available for contravening an ADVO include:
Self-defence (you contravened the AVO to protect yourself, another person, or your property)
Duress (You were coerced or threatened into breaching the AVO)
Necessity (You had to breach the AVO to prevent serious injury)
Inadvertent (accidental) breach – If you were not aware of the terms of your ADVO and accidentally breached the ADVO. For example, if you walked into a public place without knowing that the protected person was also present in that place.
The contravention was necessary to attend mediation
The contravention was done in compliance with the terms of a property recovery order
You can show that you were not served a copy of the AVO or you were not in court when the AVO was made
We will be here to support you, whether you’re seeking legal advice on how to contest any form of AVO unjustly made against you, or to enquire about how the process works. Contact our experienced team of lawyers at (02) 9060 9799 or email our Principal Lawyer at samuel@saslawyers.com.au.
Stalking or Intimidation
What must the Prosecution prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You intimidated or stalked another person
You did so intending to cause that person to fear physical or mental harm. Where you knew your conduct was likely to cause fear in the other person
The Prosecution does not need to prove that the person who was allegedly stalked or intimidated actually feared physical or mental harm.
What is Stalking?
Stalking includes the following:
Following a person about,
Watching or frequenting the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for any social or leisure activity,
Contacting or approaching a person using the internet or other technologically assisted means.
A court will consider any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.
What is Intimidation?
Intimidation of a person means:
Conduct (including cyber bullying) amounting to harassment or molestation of the person. An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email.
An approach made to the person by any means (including by telephone, text messaging, emailing, and other technologically assisted means) that causes the person to fear for his or her safety
Conduct that causes a reasonable apprehension of:
injury to the person or to another person with whom the person has a domestic relationship, or
violence to any person, or
damage to property, or
harm to an animal that belongs or belonged to, or is or was in possession of the person or another person with whom the person has a domestic relationship
A court will consider any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.
Maximum Penalties
The maximum penalty is a fine of 50 penalty units ($5,500) and/or 5 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on your circumstances and the nature of your offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to this charge can include:
You Acts did not constitute stalking or intimidation
You did not intend to cause the other person to fear physical or mental harm
If you have any further questions or want to discuss your situation with proficient and experienced lawyers, contact Criminal Lawyers – Defending You at (02) 9060 9799 or email our Principal Lawyer at samuel@saslawyers.com.au.