Breach of AVO in New South Wales

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An Apprehended Violence Order (AVO) is a protection order that places conditions on the contact that one person can have with another person. It is a criminal offence to breach a AVO by failing to adhere to its conditions. This page deals with breaches of Apprehended Violence Orders in New South Wales.

Legislation

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. It 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 in New South Wales?

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 tell the police and or your lawyer as soon as possible. Make notes about the breach and provide this information to the police.

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

When an AVO is made against a person, this is not a finding of guilt and the AVO does not appear on their criminal record. However, breaching an AVO in NSW is a serious criminal offence and you will have to attend court to answer the charge.

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

Will I get a conviction?

Yes. If you are found guilty of breaching an AVO, you will have a conviction recorded on your criminal record. The court will also impose a sentence, taking into account the circumstances of the offence, your prior record, 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. Some of these are outlined below.

Accused was not aware of the 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, this is a defence to breaching the AVO.

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), they may have a defence.

Breach AVO is a strict liability offence, meaning that it does not require intention or recklessness, only knowledge. If the accused mistakenly believed in a state of affairs that would have rendered their conduct innocent, they are not guilty of an offence.

Examples of how this defence may apply are:

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

Duress

A person is not guilty of an offence if they were essentially ‘forced’ to do the act by another person. If the accused was placed under duress to commit acts that amounted to a breach of an AVO, they have a defence.

Accident

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

Where protected person initiates contact

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

If there is a ‘no contact’ condition, responding to a message from the protected person may amount to a breach. A protected person cannot give permission to a defendant to have contact with them if the AVO conditions prohibit contact.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.