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Breach of an AVO in New South Wales

The offence of breaching an AVO in New South Wales is set out in section 14 of the Crimes (Domestic and Personal Violence) Act 2007.

An AVO (Apprehended Violence Order) is breached if you do something that is in breach of the conditions listed in the order. You cannot be in breach of an AVO in NSW unless you have been served with the order or were in court when the order was made.

An AVO is a protection order that places conditions on a defendant from making contact with the protected person. For information on applying for an AVO in NSW, read our dedicated article, Applying for an AVO in New South Wales.

What happens if I breach an AVO in New South Wales?

Breaching an AVO gives the police power to arrest you and lay criminal charges for the breach. If you have committed another offence, such as assault, you may also be charged with those offences.

If you are a protected person and the defendant breaches an AVO, you should tell the police and / or your lawyer as soon as possible. Make notes about the breach and provide this information to the police officer.

Having an AVO against you is not a criminal offence and will not show up on a criminal record. However, breaching an AVO in NSW is a criminal offence which can go on your criminal record.

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

A person who has an AVO against them is not guilty of a criminal offence and so the AVO is not listed on their criminal record. However, breaching an AVO in NSW is a criminal offence.

Upon breaching an AVO and being charged by the police, the police may arrest you or issue you with a Court Attendance Notice (CAN). A person arrested and placed in police custody may need to apply for bail. The CAN sets out when you will need to attend court.

As a breach of an AVO is a summary offence, it will be heard in the Local Court.

What are the penalties for a breach?

At court, you will need to plead guilty or not guilty. If the court finds you guilty then you may be fined up to $5,500 or imprisoned for two years.

A guilty verdict is more likely if the breach involved physical violence or if there is history of domestic violence.

If found guilty by the court, you will then have a conviction appear on your criminal record.

As well as fines and imprisonment, there are other penalties that the court can impose for a breach an AVO in NSW. These include the following:

  • Home detention – instead of full-time imprisonment, the sentence is served from your residential home;
  • Suspended sentence – this is a sentence of imprisonment which is suspended upon you entering into a good behaviour bond. If you comply with the bond, then you will not have to go to prison. A suspended sentence is only available if the sentence is under two years;
  • Good behaviour bond – this is a court order requiring you to be of good behaviour for a specific period (not more than five years). The bond contains conditions which must be obeyed;
  • Section 10 Dismissal – this section is found in the Crimes (Sentencing and Procedure) Act 1999. It allows a court to dismiss the charges without recording a conviction if you plead guilty or you are found guilty of an offence.

Being charged with a breach of an AVO in NSW is a serious offence and a person charged should obtain legal advice. If you are charged with breaching an AVO, a solicitor will be able to tell you if there are any defences that can be raised in your favour.

What about accidental breaches?

There may be instances where you may accidentally breach an AVO. For example, you may be in a shopping centre not knowing the protected person is there. A defendant cannot be convicted for breaching an AVO unless they knowingly breach the conditions.

In some circumstances, the protected person may contact you to do something. If this happens, you should get legal advice as soon as possible before replying to ensure that you do not breach the AVO.

This is because it may be illegal if you respond to a text message from the protected person, if the AVO imposes a non-contact condition. A protected person cannot give permission to the defendant to breach the AVO.

It should also be noted that section 14 of the Crimes (Domestic and Personal Violence) Act 2007 provides that a protected person cannot be found guilty of aiding, abetting, counseling, or procuring a person to breach an AVO.

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