The New South Wales Government will introduce two new aggravated offences for certain breaches of an Apprehended Domestic Violence Order (‘ADVO’).
This will include new offences for:
- Knowingly contravening an ADVO with intent to cause harm or fear; and
- A new offence for repeated breaches of an ADVO.
The offences were introduced under the Crimes (Domestic and Personal Violence) and Other Legislation Amendment Bill 2024. They have not yet come into effect, and will do so when proclaimed to commence, which is expected to be within 2024.
What is an ADVO?
An ADVO is an order which aims to protect a person from another person by imposing conditions, in circumstances where the person has reasonable grounds to fear the commission of a domestic violence offence, intimidation, or stalking.
This conduct must be, in the opinion of the court, sufficient to warrant the making of the order. The person who the order ‘protects’ is referred to as the Person in Need of Protection (‘PINOP’), whereas the person who the order restricts is the Defendant.
Applications for an ADVO are considered civil proceedings, and such orders will not show up on a criminal record. However, it is a criminal offence to breach any ADVO condition.
What conditions can be imposed on an ADVO?
Condition 1 is a mandatory condition that must appear on all AVOs. Every ‘condition 1’ will state that: the defendant must not do any of the following to the protected person/s or anyone that they have a domestic relationship with:
- Assault or threaten them,
- Stalk, harass or intimidate them,
- Intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of them.
There are numerous other conditions that may be sought, such as those which prohibit:
- The Defendant contacting or approaching the PINOP,
- The Defendant from approaching the PINOP within 12 hours of consuming alcohol or drugs,
- Access by the Defendant to any premises occupied by the PINOP or where they work,
- The Defendant from finding or attempting to locate the PINOP, and
- The Defendant possessing firearms or prohibited weapons.
What are the penalties for Breaching an ADVO?
The standard offence of knowingly contravening (aka breaching) a prohibition or restriction specified in an apprehended violence order, is outlined in section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
It carries a maximum penalty of 2 years imprisonment and/or a $5,500 fine.
The legislation prescribes that where the act constituting the offence (i.e., the breach) was an act of violence, the court must sentence the person to a term of imprisonment, unless the court decides otherwise. Where the court decides not to do so, it must give reasons.
New offence – Breach AVO with intent to cause fear or harm
Along with the recent introduction of ‘Serious Domestic Abuse Prevention Orders’ and the new requirements for some alleged domestic violence perpetrators granted bail to wear ankle bracelets in NSW, a number of new domestic violence offences have been introduced in NSW. The new offence for knowingly contravening an ADVO will be directed at serious or harmful breaches of ADVOs with a focus on the offender’s intention to cause harm or fear.
It requires the prosecution to prove, beyond reasonable doubt, that the offender knowingly contravened the ADVO with the intention of causing the PINOP physical or mental harm, or to fear for their or the safety of another person.
A person had the ‘intention’ to cause the PINOP physical or mental harm, or fear for their safety or another person’s, if the person knows that the conduct is likely to cause the harm or fear. The prosecution is not required to prove that the person actually caused the PINOP harm or fear.
A maximum penalty of 3 years imprisonment and/or a $11,000 fine is applicable.
New offence – Repeat breaches of ADVO
Police will soon be able to charge a person with a new offence where it is alleged that there has been repeated breaches of an ADVO.
A repeated breach will fall under this offence where a person knowingly contravenes an ADVO three or more times within a 28-day period.
Again, it prescribes that it must be proven that a reasonable person would consider the conduct likely, in all the circumstances, to cause the PINOP physical or mental harm, or to fear for their safety or another person’s, whether or not the harm or fear was in fact caused.
A maximum penalty of 5 years imprisonment and/or a $16,500 fine is applicable.
The NSW Government noted that: “the addition of this offence reflects and responds to the fact that persistent breaches within a short timeframe indicate an escalation of behaviour and therefore a greater risk.”
