An Apprehended Violence Order (AVO) is issued by a court when a person, known as the defendant, makes someone else fear for their own safety (person in need of protection or ‘PINOP’). AVOs fall under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and can be split into two categories:
- Apprehended Personal Violence Order (APVO): covers all non-domestic situations
- Apprehended Domestic Violence Order (ADVO): covers all domestic situations
An AVO comes with a set of conditions that the court designs to protect the PINOP which the defendant must obey. If the defendant disobeys these conditions, known as breaching an AVO, they can face severe penalties.
What is Considered Breaching an AVO in NSW?
An AVO breach, also known as a ‘contravention of AVO criminal offence’, is when the defendant disobeys one or more conditions listed in their AVO. In the instance of an ADVO, the set of conditions can extend to family members of the PINOP, including partners.
Under Section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), breaching an AVO is a criminal offence that can result in imprisonment, heavy fines and/or a criminal record.
What Happens if You Breach An AVO?
When you breach any of the conditions of your AVO, police have the ability to arrest you under criminal charges and you will need to attend court. If you committed any other offences while breaching your AVO, police would also lay separate charges.
Therefore, it is essential to know the exact conditions of your AVO, as this will avoid any potential breaches and other issues. For example, you should always check if there are any restrictions on attending the address of the PINOP.
The Penalty for Breaching an AVO
Breaching an AVO is a criminal offence that carries a maximum penalty of a $5,500 fine and/or imprisonment for two years.
Generally, if you breach your AVO, the sentencing court will look at a criminal conviction against your record.
A Minor Breach of AVO Conditions
However, if it is a minor breach of the AVO conditions, the court may not impose a criminal conviction. Instead, the judge or magistrate may consider a section 10, and you can avoid facing a criminal record.
In cases involving a serious breach, the court can impose further penalties, including prison terms.
Jail Terms for Breaching an AVO
Breaching an AVO can carry a two-year prison sentence, depending on the severity of the offence. Jail terms for a breach of an AVO can include full-time imprisonment or an intensive correction order (a court sentencing served in the community under strict supervision).
If the court finds that you have committed a serious crime such as an act of violence against a person while breaching your AVO, the law compels the judge or magistrate to impose a jail sentence. Furthermore, if you have had a history of domestic and personal violence offences, the court may also consider including a jail sentence.
Breaching an AVO in NSW
In New South Wales, you are committing a criminal offence any time that fail to comply with one or more conditions of your AVO.
If you breached your AVO outside of the State, NSW police could refer the investigation to the jurisdiction where the alleged breach occurred.
NSW AVO Conditions
There are two sets of AVO conditions in NSW, these being: mandatory or optional. The court can impose optional conditions, depending on the specific requirements of the PINOP.
Mandatory conditions state that the defendant must not do any of the following to the PINOP:
- Assault or threaten
- Stalk, harass or intimidate
- Intentionally and recklessly destroy or damage property that belongs to PINOP
Optional conditions can further restrict the defendant by:
- Not allowing residence in the family home
- Not allowing contact with the PINOP, unless through a lawyer
- Now allowing to come within a certain distance of the PINOP’s residence, work or school
- Not allowing to be in the company of the PINOP after consuming alcohol or drugs (12 hours from the last dosage)
- Not allowing the possession of firearms or any other prohibited weapons
- Not allowing to try and locate the PINOP
Defences to the Breach of an AVO
If you don’t want to plead guilty, there are three types of defences that you can adopt:
- Duress: your actions were performed due to threats (express or implied) of death or serious injury to your or your family
- Necessity: personal circumstances compelled to break the law to avoid dire consequences
- Self-Defence: necessary conduct of defence if the PINOP is unlawfully restricting your liberty, violating or criminally trespassing on your property
Alternatively, if you can prove beyond reasonable doubt that you were unaware that you breached a condition of your AVO, the court cannot convict you.
What if I never received notice of the AVO?
A guilty verdict is handed down when the police or prosecution prove that you have breached your AVO and did so knowingly. Therefore, if you can prove that you were unaware of the specific conditions when you breached your AVO, you cannot be found guilty of the charge.
To prove that you were aware of the AVO, the prosecution will need to provide an Affidavit of Service to prove that you were served the order or transcripts from court sessions if the AVO was issued in court.
What happens if I breach my AVO with a further offence?
If you committed any other crimes while breaching your AVO, NSW police will charge you with the breach of an AVO alongside any other alleged offences. As a result, this will require the court to consider more serious penalties.
LY Lawyers offers experienced criminal defence lawyers that can provide you with the best defence against a breach of AVO charge. Our criminal law team is available 24/7 to provide over the phone legal advice at 1300 595 299.
What Happens if a Protected Person Breaches an AVO?
The court issues AVOs for the protection of PINOPs and can only control the behaviour of the defendant. Therefore, PINOPs can’t breach their own AVO.
Can a protected person be charged with breaching an AVO?
PINOPs cannot be charged with breaching their own AVO. However, if the PINOP has come to see you to breach their own conditions, you still have the right to call the police.
What if the protected person does not want anAVO?
In some cases, AVOs are requested by the NSW police against the wishes of the PINOP. Under Section 27 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), police are compelled to apply for an AVO on behalf of the victim if they suspect you have committed a domestic violence offence.
In these instances, police do not need the victim’s consent to request an AVO from the court. If the victim wants to remove the AVO, they will need to apply to the court to change or revoke the ordered conditions. However, sometimes the court can reject these applications if they believe the victim’s safety is in immediate danger.
What if the protected person continues to breach an AVO?
In situations where the PINOP is repeatedly breaching their own conditions of the AVO, they can be charged under separate offences. These offences include stalking or intimidation or using carriage services to menace, harass or offend.
For example, if someone has an AVO against you and consistently appears at your workplace, you can call the police to have them charged.
LY Lawyers Case Study – Breach AVO
One of our clients had an AVO against him with the condition of limiting any contact with the PINOP.
During this AVO period, our client (the defendant) allegedly breached the AVO over 100 times by sending harassing emails to the victim.
Our LY criminal lawyer negotiated with the prosecution to reduce the alleged number of emails sent to 40. Following this, our client pleaded guilty to the corrected set of facts.
The criminal law matter appeared before Magistrate Holdsworth at Liverpool Local Court in May 2015. We prepared our client’s case diligently, providing supporting evidence that effectively argued for a section 10 application.
The evidence included a character witness who also attended the court on the day of sentencing. Alongside this, we also presented evidence of our clients overseas work travel, which would not be possible with a criminal conviction.
Ms Holdsworth agreed with our submission and placed our client on a Section 10 good behaviour bond, therefore avoiding any criminal record.
Frequently Asked Questions
Is breaching an avo the same as breaching an intervention order?
An intervention order differs from an AVO as it protects someone (either adult or child) from particular behaviours that may occur. Meanwhile, an AVO is issued after violent acts have already occurred with the potential for repeated action.
Breaching an intervention order carries heavier penalties, including heavy fines of up to $10,000 and/or two years imprisonment. Breaching an AVO carries the same prison term but a smaller fine of $5,500.
Is breaching an AVO a criminal offence?
By breaching avo conditions, you are committing a criminal offence and the police will charge you accordingly.
If you plead guilty in court, this serious offence can result in a criminal record, which can limit your freedom to travel or find employment. Therefore, it is crucial to seek legal help to avoid a criminal conviction.
Will I go to jail if I breach an AVO?
The maximum penalty for defendant breaches of an AVO is a $5,500 fine and/or imprisonment for two years. The court will consider the jail sentence if you are proven guilty of committing an act of physical violence during the breach or have had previous convictions on your criminal record.
If the police have charged you with domestic violence offences while breaching your AVO, obtain independent legal advice with LY Lawyers at 1300 595 299.
What happens if I accidentally breach an AVO?
Accidental breaches of an AVO cannot be convicted in court. However, you will need to present evidence to the court to support your claim. If you have unexpectedly received a court attendance notice for a breach of an AVO charge, seek legal assistance to help during court proceedings and avoid a conviction.