New Aggravated Offences for Breaching an Apprehended Domestic Violence Order (ADVO) in New South Wales
The New South Wales (NSW) Government has introduced significant changes to the state’s domestic violence laws with the introduction of two new aggravated offences for breaches of an Apprehended Domestic Violence Order (ADVO). These offences, part of the Crimes (Domestic and Personal Violence) and Other Legislation Amendment Bill 2024, aim to address serious breaches of ADVOs, which jeopardize the safety and wellbeing of victims of domestic violence.
The Two New Aggravated Offences for Breaching an ADVO in NSW
- Knowingly contravening an ADVO with the intent to cause harm or fear.
- Persistently breaching an ADVO on three or more occasions within a 28-day period.
What is an Apprehended Domestic Violence Order (ADVO)?
An Apprehended Domestic Violence Order (ADVO) is a legal order designed to protect individuals from domestic violence, intimidation, and stalking. It places restrictions on the defendant’s behaviour when there is a reasonable fear of harm or violence. The individual protected by the ADVO is known as the Person in Need of Protection (PINOP), and the individual the order restricts is known as the Defendant.
Conditions of an ADVO
ADVOs come with certain conditions that prohibit harmful actions by the defendant, such as:
- Assaulting or threatening the protected person or anyone with whom they share a domestic relationship.
- Stalking, harassing, or intimidating the protected person.
- Recklessly or intentionally damaging property or harming animals belonging to the protected person.
Additional conditions may include:
- Prohibiting the defendant from contacting or approaching the PINOP.
- Restricting the defendant from approaching the PINOP if under the influence of alcohol or drugs.
- Preventing access to the properties where the PINOP resides or works.
- Banning the defendant from possessing firearms or prohibited weapons.
It’s important to note that ADVO applications are civil proceedings, and therefore, are not recorded on a criminal record. However, breaching an ADVO is a criminal offence and can result in serious penalties.
Penalties for Breaching an ADVO in NSW
Under Section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), knowingly breaching an ADVO can result in severe penalties, including:
- Up to 2 years imprisonment
- A fine of up to $5,500
In cases involving violence, the court must impose a term of imprisonment unless exceptional circumstances exist.
New Offences for Breaching an ADVO
1. Breaching an ADVO with Intent to Cause Harm or Fear
The new aggravated offence targets serious breaches where the defendant’s intent is to cause harm or instil fear in the protected person. To secure a conviction, the prosecution must prove beyond reasonable doubt that the defendant knowingly breached the ADVO with the intent to:
- Cause physical or mental harm to the PINOP.
- Instil fear for the safety of the PINOP or others.
If proven, this new offence carries a maximum penalty of 3 years imprisonment and/or an $11,000 fine.
2. Repeated Breaches of an ADVO
The new legislation also introduces a provision for repeated breaches of an ADVO. Under this offence, law enforcement can charge individuals who have knowingly contravened an ADVO three or more times within a 28-day period.
It must be demonstrated that a reasonable person would consider the defendant’s actions likely to:
- Cause physical or mental harm to the PINOP.
- Instil fear for the safety of the PINOP or others.
Notably, harm or fear does not need to have actually occurred for a conviction.
The penalty for this offence includes a maximum of 5 years imprisonment and/or a $16,500 fine.
General Legal Defences for Breaching an AVO
When facing charges for breaching an ADVO, defendants may present general legal defences such as self-defence, duress, or necessity. If a defendant presents evidence supporting one of these defences, the burden of proof shifts to the prosecution. The prosecution must then establish beyond reasonable doubt that the defence does not apply to the specific circumstances of the case.
If the prosecution fails to meet this burden of proof, the defendant is entitled to an acquittal or not guilty verdict.
Stronger Legal Consequences for Breaching an ADVO
The NSW Government has emphasised that the introduction of these new aggravated offences is in response to the escalating risk posed by repeat breaches of ADVOs. If you are charged with breaching an ADVO in NSW, it’s important to understand that the legal landscape has significantly changed. The new aggravated offences bring stricter penalties and a more focused approach on the intent and repetition of breaches. These changes aim to reinforce the legal protections for individuals who have been granted an ADVO. With these tougher measures in place, the law now carries stronger consequences for those found guilty of breaching an ADVO, ensuring that domestic violence victims receive better protection and safety.
