Criminal Law - Apprehended Violence Orders - Court and Penalties

The vast majority of the AVOs and PVOs are settled after negotiations and the application can either be withdrawn and dismissed, or an undertaking made not to embark on any form of specified behaviour without admissions, or with an order being made with the consent of both parties with no admissions as to the nature of the facts alleged in the application for an order. Once an individual has been charged the matter can only be disposed of in court. In some matters the defendant believes they are being victimised by both the police and courts as to what is being alleged against them does not accord with what happened or is an embellishment of the truth. Police enquiries press charges as the quick and easy way to deal with the matter. For those matters that are adjourned for legal advice or for a ‘show cause’ or hearing, there will invariably be an interim order put in place until the matter can be finally determined at court.

A hearing involves the giving of evidence on oath and examination of the facts and the witnesses by the prosecution following which orders are granted by the court. If the court is satisfied, on the balance of probabilities, that a person has reasonable grounds to fear and in fact fears a commission of a personal violence offence or that the conduct amounts to intimidation or stalking, the court will grant an order. An order can be in duration for a minimum of six months but generally it is for either one or two years, or as long as the court thinks is necessary.

An order can simply be to restrict offending behaviour but it can include an order restricting a person from living in his or her own property. When this situation happens the ramifications often see the proceedings spill over into the Family Court. The penalties for breaching an order carry a penalty of up to $5,500 and/or two years imprisonment. Under the Bail Act there is a presumption against being granted bail for those persons who have breached an AVO, that is, repeat offenders. There are other implications such as mandatory loss of a firearms’ licence for ten years for those persons who find themselves subject to an AVO.

Another important inclusion in the current legislation is a specific offence of stalking and/or intimidation with intent to cause fear of physical or mental harm. This offence is separate to the provisions of an AVO, and if convicted the person is liable to a maximum penalty of $5,500 or five years imprisonment or both. The test of this offence is that the person accused must be shown to have intended that his/her actions would cause fear of physical or mental harm (note, there is no reference to property in this section) or he/she is aware that their conduction would have been likely to have caused fear in the other person. The prosecution does not have to show that there was actual fear by the person being stalked or intimidated or that they were actually harmed physically or mentally.

If it can be demonstrated that the application brought is frivolous, vexatious or without substance or without likelihood of success the court can refuse to grant the order and where the matter could be dealt with more appropriately by either mediation or alternative dispute resolution, such as with the Community Justice Centre, the court can decline to make an order. A good example of this would be a dispute between neighbours being referred initially before an order would be considered. 

If you are charged with an AVO you need to make an informed decision as to how to proceed as the type of orders that can be imposed can be quite draconian. Some possible ramifications have been outlined above including loss of firearms’ licence, restrictions including effectively banned from home and serious implications for bail should you find yourself faced with ongoing allegations by the same person. Both apprehended domestic and personal violence offences are serious. They require representation. Many offenders believe all they have to do is to go in and give their version of events so that nothing will come of it. Unfortunately when they do this they make admissions. In order to avoid this happening contact LAC Lawyers on (02) 9904 6800 for independent advice and representation.