Breach AVO - Domestic Violence Order

The Law

Section 562-I Crimes Act states:
(1) A person who knowingly contravenes a prohibition or restriction specified in an order made against the person is guilty of an offence.
(2) A person is not guilty of an offence under this section unless: 
(a) the person was served under section 562J with a copy of the record of the order concerned or was present in court when the order was made, or 
(b) in the case of a telephone interim order the person was served with the order or a copy of the order under section 562H.

(2B) Unless the court otherwise orders, if a person is convicted of an offence against this section, the person must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person. This subsection does not apply if the person convicted was under 18 years of age at the time of the alleged offence.

(2C) Where the court determines not to impose a sentence of imprisonment, it must give its reasons for not doing so.

(3) If a member of the Police Force believes on reasonable grounds that a person has committed an offence against this section, the member of the Police Force may, without warrant, arrest and detain the person.

(4) A person so arrested and detained shall be brought as soon as practicable before a court to be dealt with for the offence.(5) Proceedings for an offence against this section shall be dealt with summarily before a Local Court.

(6) If: 
(a) a police officer believes on reasonable grounds that: 
(i) a person has committed an offence against this section, or 
(ii) a person, in respect of whom an alleged breach of this section has been reported to that or another police officer, has not committed an offence against this section, and 

(b) that or another police officer: 
(i) decides not to initiate criminal proceedings against the person, in respect of the alleged offence, whether or not the person has been arrested, or 
(ii) decides not to proceed with criminal proceedings, the police officer must make a written record of the reasons for the decision.

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Maximum penalty 

The Maximum penalty for the offence of Contravene Apprehended Violence Order is a fine of 50 penalty units and/or two years imprisonment.

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What the police must prove 

In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.

1. The accused contravened a prohibition or restriction specified in an order made against the person.
2. The contravention was done or made knowingly.

It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence.

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Possible defences 

The Crimes Act provides a defence to the offence. Section 562I(2) states:
(2) A person is not guilty of an offence under this section unless: 
(a) the person was served under section 562J with a copy of the record of the order concerned or was present in court when the order was made, or 
(b) in the case of a telephone interim order the person was served with the order or a copy of the order under section 562H.

Other possible defences to this offence include but are not limited to:

1. Duress
2. Necessity
3. Self Defence

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Which court is likely to hear the matter

This matter is a summary matter and can only be finalised in the Local Court.

 

Disclaimer

The information contained in this page was accurate at the time it was published. You should confirm the accuracy of this information with us or another solicitor before relying upon it. For free confirmation please contact Armstrong Legal.

It is most important that you understand that each criminal case is different. While the material in this page is intended to be relevant to the majority of cases, it may not apply to every case.