AVO-Related Offences

Although being served with an AVO or Protection Order is not the same as being charged with a criminal offence, breaching an AVO can result in criminal charges being laid and, if you plead guilty or are found guilty of a breach, a conviction is likely to be recorded.

CONTRAVENE AVO

  1. Contravening an AVO is an offence under section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
  2. This offence is a summary offence. It must be dealt with in the Local Court.
  3. The maximum penalty for contravening an AVO is 2 years imprisonment and/or 50 penalty units (i.e. a fine of up to $5,500).
  4. If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is possible that a criminal conviction will be recorded.

If police allege that you contravened an AVO, they must prove that:

  1. an AVO was in force
  2. you breached a condition of the AVO, and
  3. you knew the AVO condition(s) was in place.

What is an AVO?

AVO stands for Apprehended Violence Order. It is an umbrella term used to refer to both APVOs and ADVOs. An AVO is an order for someone’s future protection. It imposes restrictions on your behaviour.

What is an APVO?

APVO stands for Apprehended Personal Violence Order. This type of AVO will be sought if you are not or have not been in a domestic relationship with the PINOP. Common examples include:

  • neighbours
  • work colleagues
  • friends

What is an ADVO?

ADVO stands for Apprehended Domestic Violence Order. This type of AVO will be sought if you are or were in a domestic relationship with the PINOP.

What is a domestic relationship?

You have a domestic relationship with someone if:

  • you are, or were, married to the PINOP
  • you are, or were, in a de facto relationship with the PINOP
  • you have had an intimate personal relationship with the PINOP (whether sexual or not)
  • you live, or have lived, in the same house as the PINOP
  • you are, or have, been a relative of the PINOP
  • you and the PINOP have both been in a domestic relationship with the same person (e.g. your ex-husband’s new partner)

What can amount to breaching a condition of an AVO?

An AVO imposes restrictions on your behaviour. If you knowingly do something which you are prohibited from doing, you will have breached the AVO. Common examples include:

  • assaulting the PINOP
  • contacting the PINOP (whether in person, by phone, by text message, by email or by social media)
  • turning up at the PINOP’s workplace
  • entering the PINOP’s house
  • seeing the PINOP within 12 hours of drinking

Whether the above actions will amount to breaching an AVO will depend on the conditions of the AVO you are subject to.

How does the court determine whether I knew a particular condition was in place?

If you were served with a copy of the AVO, or were in court when the AVO was made, you are assumed to be aware of the conditions. This is the case even if you did not read the paperwork.

What are the possible defences?

  • You may deny that you breached the AVO
  • You may not have been aware that an AVO was in place because:
    • you were not served with a copy of the AVO, or
    • you were not in court when the AVO was made
  • You may have been acting in self-defence
  • You may have been acting under duress

Should I plead guilty or not guilty?

This will depend on a number of factors, including whether you knew that the AVO was in place.
You may accept that you breached the AVO but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.

If I plead guilty or am found guilty, will a conviction be recorded?

It is possible that the court may record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded.

What does it mean to have a conviction recorded?

A conviction is an entry on your criminal record (also referred to as your antecedents). A conviction may pose a hurdle, or a bar, in relation to current or future employment, travel, adoption, residency, applications for citizenship or your ability to attain or hold a certain licence.

It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded, or to advise you if a conviction is recorded.

Will I go to jail for contravening an AVO?

The maximum penalty for contravening an AVO is 2 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
The courts treat contravening an AVO very seriously. Especially if you breach the AVO with an act of violence, it is possible that you will go to jail.

If the court sentences you to an intensive correction order, community correction order or conditional release order, it is likely that the order will include a supervision condition.

It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail.

What will the court take into account when sentencing?

The court will take into account the nature and seriousness of the breach and the surrounding circumstances. For example, if you breach an AVO with an act of violence, this will be seen as more serious than a non-violent breach. The court will also take into account many other factors including your personal circumstances and criminal history.

I have been charged with breaching an AVO because I was talking to the PINOP, but I was only speaking to her because she called me. Am I still guilty?

Yes. An AVO only imposes restrictions on your behaviour, not the behaviour of the PINOP. This means that even if the PINOP contacts you, if you engage in communication with them, you are breaching the AVO and could be charged with a criminal offence.

STALK OR INTIMIDATE

  1. Stalking or intimidation is an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
  2. This offence is a Table 2 (T2) offence. It is normally dealt with in the Local Court but can sometimes be dealt with in the District Court.
  3. The maximum penalty for stalking or intimidation is 5 years imprisonment and/or 50 penalty units (i.e. a fine of up to $5,500). If dealt with in the Local Court, the maximum penalty is 2 years imprisonment.
  4. If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is possible that a criminal conviction will be recorded.

If police allege that you stalked or intimidated someone, they must prove that you:

  1. either stalked or intimidated someone (the complainant), and
  2. intended to make the complainant fear physical or mental harm.

What does stalking mean?

Stalking includes:

  • following a person, or
  • watching, approaching or being in the vicinity of a person’s house, business or workplace, or another location the person frequently attends.

What does intimidation mean?

Intimidation includes:

  • conduct which amounts to harassment
  • approaching someone and causing them to fear for their safety (the approach can be either physical or by telephone, text message, email etc), or
  • any other conduct which causes a person to fear that they or someone else will be injured, or property will be damaged.

How does the court determine whether I intended to make the complainant fear physical or mental harm?

This is a question for the magistrate or jury, who would consider all of the surrounding circumstances including what you did and said.

What are the possible defences?

  • You may deny stalking or intimidating the complainant
  • You may not have intended to make the complainant fear physical or mental harm.

Should I plead guilty or not guilty?

Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you stalked or intimidated the complainant.

If you accept that you acted in the way alleged, your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious charge such as common assault.

Alternatively, you may accept that you stalked or intimidated the complainant but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the police facts.

If I plead guilty or am found guilty, will a conviction be recorded?

It is possible that the court may record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded.

What does it mean to have a conviction recorded?

A conviction is an entry on your criminal record (also referred to as your antecedents). A conviction may pose a hurdle, or a bar, in relation to current or future employment, travel, adoption, residency, applications for citizenship or your ability to attain or hold a certain licence.

It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded, or to advise you if a conviction is recorded.

Will I go to jail for stalking or intimidation?

It is possible that you will go to jail. The maximum penalty for stalking or intimidation is 5 years imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.

It is important that a lawyer properly prepares and presents your case to minimise the risk of you going to jail.

What will the court take into account when sentencing?

The court will take into account the nature and seriousness of the offending behaviour and the surrounding circumstances. For example, intimidatory behaviour which occurs over a long period of time will usually be seen as more serious than one-off offending. The court will also take into account many other factors including your personal circumstances and criminal history.

FALSE OR MISLEADING AVO APPLICATION

  1. Making a false or misleading application for an apprehended violence order (APVO) is an offence under section 49A of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
  2. This offence is a summary offence. It must be dealt with in the Local Court.
  3. The maximum penalty for making a false or misleading application for an APVO is 12 months imprisonment and/or 10 penalty units (i.e. a fine of up to $1,100).
  4. If you plead guilty, or are found guilty, a number of different sentences can be imposed. It is possible that a criminal conviction will be recorded.

If police allege that you made a false or misleading application for an APVO, they must prove that:

  • you made a statement
  • you knew the statement was false or misleading, and
  • the statement was made to obtain an apprehended personal violence order.

What is a statement?

A statement is an assertion. A statement can be made orally, in a document, or in any other way.

What is an APVO?

APVO stands for Apprehended Personal Violence Order. This type of AVO will be sought if you are not, or have not, been in a domestic relationship with the PINOP. Common examples include:

  • neighbours
  • work colleagues
  • friends

What are the possible defences?

  • You may deny that you made a false or misleading statement
  • You may accept that you made a statement which was false or misleading, but say that at the time you made the statement you believed it to be true.

Should I plead guilty or not guilty?

This will depend on a number of factors, including whether you agree that you knowingly made a false or misleading statement.
You may accept that you committed the offence but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the police facts.

If I plead guilty or am found guilty, will a conviction be recorded?

It is possible that the court may record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded.

What does it mean to have a conviction recorded?

A conviction is an entry on your criminal record (also referred to as your antecedents). A conviction may pose a hurdle, or a bar, in relation to current or future employment, travel, adoption, residency, applications for citizenship or your ability to attain or hold a certain licence.

It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded, or to advise you if a conviction is recorded.

Will I go to jail for making a false or misleading application for an APVO?

It is possible that you will go to jail. The maximum penalty for making a false or misleading application for an APVO is 12 months imprisonment, however the type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.

What will the court take into account when sentencing?

The court will take into account the nature and seriousness of the false or misleading statement and the surrounding circumstances of you making the statement. The court will also take into account many other factors including your personal circumstances and criminal history.

USE CARRIAGE SERVICE TO MENACE, HARASS OR OFFEND

  1. Use carriage service to menace, harass or offend is an offence under section 474.17(1) of the Criminal Code 1995 (CTH).
  2. Depending on the nature of your charges, use carriage service offences are categorised as summary offences or Serious Indictable offences (SI). However, this offence is generally dealt with summarily (i.e. as a summary offence).
  3. Summary offences must be finalised in the Local Court and Serious Indictable offences must be finalised in the District Court.
  4. The maximum penalty for use carriage service to menace, harass or offend is 3 years imprisonment. However, if the matter is dealt with summarily in the Local Court the maximum penalty is 12 months imprisonment and/or 60 penalty units (i.e. a fine of up to $6,600).
  5. If you plead guilty, or are found guilty, a number of different sentences can be imposed.

If you have been charged with use carriage service to menace, harass or offend, police must prove that:

  • you used a carriage service to communicate with the alleged victim
  • your method or content of communication could be regarded as menacing, harassing or offensive.

What does ‘using a carriage service’ mean?

Generally, you use a carriage service when you engage in communication through the use of technology. For example phone calls, text messages, post messages on social media and emails are forms of communication which require the use of a carriage service.

What does ‘menace’ mean?

Menace is defined under the Act to include a direct or general threat, expressed or implied of detrimental or unpleasant conduct to the victim which would cause a reasonable person to act unwillingly.

What does ‘harass’ mean?

Harass includes spamming or contacting the victim during inappropriate hours of the day or night in order to intimidate them.

What does ‘offend’ mean?

Offend includes conduct that is generally defined as cyberbullying. For example, posting a status or photograph on social media that identifies and targets the complainant and is derogatory and insulting in nature.

What are the possible defences?

  • You may deny that you menaced, harassed or offended the complainant through the use of a carriage service
  • You may agree that you menaced, harassed or offended the complainant, but that you did not use a carriage service to do so
  • You may agree that you contacted the complainant through the use of a carriage service, but the content or method of communication would not cause a reasonable person to consider that communication as menacing, harassing or offensive.
  • You may have been under duress

Should I plead guilty or not guilty?

This will depend on a number of factors, including whether you accept that you used a carriage service to menace, harass or offend.

You may accept the alleged conduct but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecution to change the police facts.

If I plead guilty or am found guilty, will a conviction be recorded?

It is likely that the court will record a conviction. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors. It is important that a lawyer properly prepares and presents your case to minimise the risk of a conviction being recorded.

Will I go to jail for using a carriage service to menace, harass or offend?

It is possible that you will go to jail. The maximum penalty for this offence is 3 years imprisonment. However if the matter is dealt with in the Local Court the maximum penalty is 12 months imprisonment. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.

Why Choose Hugo Law Group to Defend You

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Whether you want to plead not guilty, you are looking to secure the best possible sentence, or a loved one wants to apply for bail, it is essential to have an experienced team of criminal defence lawyers in your corner.

Seeking comprehensive and practical advice at an early stage will best ensure your rights and interests are protected. Our lawyers will properly prepare and present your case to assist you in getting the best possible outcome.

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