What is an AVO?

An Apprehended Violence Order (AVO) is a protection order that places conditions on the contact one person can have with another person. Breaching an AVO by failing to adhere to its conditions is a criminal offence in NSW.

Legislation

Section 14 of the Crimes (Domestic and Personal Violence) Act 2007 sets out the penalties for breaching an AVO in NSW. The offence carries a maximum penalty of a fine of 50 penalty units or imprisonment for two years. If the court imposes a non-custodial sentence, it must give reasons.

What happens if I breach an AVO?

If you breach an AVO, the police may arrest you and lay criminal charges. If the act that breached the order also amounts to another offence (such as assault), you may also be charged with that offence.

If you are a protected person and the defendant breaches the AVO, you should make notes about the breach and tell the police as soon as possible.

Will I have to go to court for a breach of AVO?

When an AVO is made against a person, it is not a finding of guilt and the AVO does not appear on their criminal record. However, breaching an AVO is a serious criminal offence and you will have to attend court to answer the charge. A breach of an AVO is a summary offence which is heard in the Local Court.

Will I get a conviction?

If you are found guilty of breaching an AVO, a conviction will be recorded on your criminal record. The court will also impose a sentence, taking into account your prior record, the circumstances of the offence, and your personal circumstances.

Defences to breach of AVO

A person who is charged with breaching an AVO may have a legal defence available to them. These include:

·         Mistake of fact

If the accused person committed the physical acts alleged, but was relying on an honest and reasonable but mistaken belief about a matter of fact (not a matter of law).

Breach AVO is a strict liability offence, so it requires only knowledge (but not intention or recklessness). If the accused mistakenly believed in a state of affairs which if true would have rendered their conduct innocent, they are not guilty of an offence.

Examples of how this defence may apply include:

• A has an AVO against B with a condition that B is not allowed to attend A’s workplace. If B attends A’s workplace, believing on reasonable grounds that A no longer works there, they would have a defence to the charge of breach AVO.
• C has an AVO against D with a condition that D may not contact C directly or indirectly. If D approaches C, mistaking them for Person E, they would have a defence to the charge of breach AVO.

·        Duress

A person is not guilty of breaching an AVO if another person ‘forced’ them to do the act. If the accused committed acts that amounted to a breach of an AVO under duress, they have a defence.

·         Accused unaware of AVO

If the accused person was not present in court when the AVO was made and had not been served with a copy or advised of its existence;

·        Accident

A person cannot be found guilty of breaching an AVO unless they knowingly breach the conditions. A defendant may accidentally breach an AVO by, for example, being in a shopping mall not knowing the protected person is there. A defendant who runs into a protected person in a public place is not guilty of a breach; however, if the AVO includes a ‘no contact’ condition and they stop to talk to the protected person, they will be in breach.

If protected person initiates contact

If you are the defendant and the protected person contacts you, get legal advice before replying. If there is a ‘no contact’ condition, responding to a message from the protected person may amount to a breach of the AVO. If the AVO conditions prohibit contact, the protected person cannot give the defendant permission to have contact with them.

What now?

Contact us if you or someone you know needs legal advice or representation concerning a breach of an AVO.