The Offence of Persistently Contravening an Apprehended Domestic Violence Order in NSW

On 24 September 2024, the Crimes (Domestic ad Personal Violence) and Other Legislation Amendment Bill 2024 was passed by both Houses of the New South Wales Parliament, amending the Crimes (Domestic and Personal Violence) Act 2007 (‘the Act’) to, among other things, insert the offence of persistently contravening an apprehended domestic violence order (or ADVO).

The offence of contravening an apprehended violence order 

The new offence is additional to the existing offence of contravening an apprehended violence order.

The existing offence applies to both apprehended personal violence orders (APVOs) and ADVOs.

It is contained in section 14(1) of the Act and prescribes a maximum penalty of 2 years in prison and/or a fine of 50 penalty units for a person who is subject to an interim, provisional or final AVO to knowingly contravene a prohibition or restriction contained therein.

At the time of writing, a New South Wales penalty unit is equivalent to $110. The maximum fine is therefore $5,500.

The offence of persistently contravening an apprehended domestic violence order

The new offence applies only to ADVOs, which are those arising from domestic situations.

It is contained in section 14(1C) of the Act and provides that a person against whom an apprehended domestic violence order has been made faces a maximum penalty of 5 years in prison and/or 150 penalty units (currently $16,500) if:

1. The person contravenes a prohibition or restriction in the ADVO,
2. Does so knowingly, 
3. Has during the 28 days immediately preceding the contravention knowingly contravened an ADVO relating to the same protected person, or the same ADVO, or another ADVO arising from the same ADVO application, and
4. A reasonable person would consider the conduct in the latest contravention likely, in all the circumstances, to cause the protected person physical or mental harm, or to fear for their safety or that of another person, whether or not the harm or fear was actually caused.

The new section 14(1E) provides that a person who is found not guilty of persistently contravening an ADVO may instead be found guilty of the general offence of contravening an ADVO if the latter offence is proven beyond a reasonable doubt.

Additional provisions relating to offences of contravening an AVO 

The existing section 14 provides that a person is not guilty of contravening an AVO if:

• In the case of a court imposed AVO, was not in court when the AVO was made and not validly served with the AVO thereafter, 
• In the case of an AVO not ordered by the court (such as an interim AVO), was not validly served with the AVO, or
• The AVO was contravened to attend mediation or comply with a property recovery order.

The section further provides that a person whose contravention involves an act of violence must be sentenced to a term of imprisonment unless the person was under the age of 18 years, or the court gives reasons for not imposing a prison sentence.

It further provides that a person cannot be found guilty of aiding, abetting, counselling or procuring the contravention of an AVO in which they are the protected person.

It additionally provides that a police officer who suspects on reasonable grounds that an AVO contravention has occurred must make a written record of a decision not to initiate or proceed with criminal proceedings for the suspected breach.

General legal defences

General legal defences including self-defence, duress and necessity apply to charges of contravening an AVO.

In the event that evidence of a general legal defence is raised, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply to the circumstances of the case.

A person is entitled to an acquittal (a not guilty verdict) if the prosecution is unable to do this.

Going to court for an AVO?

If you have been charged with the offence of contravening an AVO, call Sydney Criminal Lawyers on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who has in-depth, specialist knowledge of the laws, defences and legal processes regarding AVO proceedings and a long and proven track record of consistently achieving exceptional outcomes.