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    Breaching an AVO is a serious criminal offence which carries the possibility of jail time.

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      Does an AVO Appear on a Police Check?

      Breach AVO

      Breaching an AVO is a serious criminal offence which carries the possibility of jail time. Indeed, if you have contravened an apprehended violence order with an offence of violence, the court is required to impose a sentence of imprisonment unless there are reasons not to.

      Breach AVO NSW Legislation

      Under Section 14 of the Crimes (Domestic and Personal Violence) Act 2007, breaching an AVO is a criminal offence carrying a penalty of up to two years in prison or a fine of up to $5,500.

      Being issued an AVO does not go on a defendant’s criminal record in New South Wales. However, if the defendant breaches the AVO by violating its conditions, it will become a criminal offence.

      The choice between a prison sentence and a non-custodial sentence will depend on which AVO conditions have been breached and how significant the breaches are. The court will state their reasons for issuing either punishment.

      What Happens if I Breach an AVO?

      The first thing to happen after breaching an AVO is an arrest. The police will search for the defendant and arrest them for the criminal offence of breaching the AVO imposed.

      The defendant could also face additional criminal charges if they committed other criminal acts to breach the AVO, such as physically assaulting the protected person on the order. This would result in a common assault charge in addition to the charge for breaching the AVO.

      The protected person is typically the one to notify the police about the defendant’s breach of AVO. Therefore, you should immediately contact your local police if you are a protected person who needs to report a breach of AVO.

      Defences

      Defences to breaching an AVO include:

      • The Defendant Never Received an Official Copy of the AVO

      A defendant could have a legal defence against a criminal charge for breaching the AVO if the court or police never issued them an official copy of the AVO to notify them of the order.

      The defendant must be served with a copy of the AVO to make them aware of its existence. Failure to do so could result in a strong defence against the criminal charge because they were unaware of the order, as an element of the offence is ‘knowledge’. In fact, a contravene AVO offence is particularised on the indictment as, ‘knowingly contravened the AVO’.

      If you are unsure whether police will be able to prove knowledge, you should consult a specialist AVO lawyer for advice.

      • Unintentional Breach

      A defendant could unintentionally violate an AVO and wrongfully get charged with a breach of AVO criminal violation.

      The court may decide to dismiss the charge if the defendant did not intend to breach the AVO. The strength of this defence depends on the defendant’s knowledge at the time of the alleged breach of AVO.

      For example, suppose the defendant is ordered to stay at least 500 metres away from the protected person. Afterwards, the defendant walks past the protected person on the street. In that case, the defendant could have a reasonable defence that they did not know the protected person would be there.

      AVO Breach Penalties

      Every breach of an AVO could result in a prison sentence of up to two years and/or a maximum fine of $5,500. These penalties are contained in the Crimes (Domestic and Personal Violence Act 2007.

      However, the court will usually give a more lenient, non-custodial sentence for the first breach of an AVO unless the defendant committed another criminal offence or act of violence to breach the AVO.

      Multiple AVO Breaches

      The second breach of an AVO or multiple AVO breaches will usually result in a more severe sentence than the first, regardless of whether the defendant committed other criminal acts. So, if the defendant only had to pay a fine for a non-custodial sentence after the first breach, the subsequent punishment for a second breach of AVO would almost certainly be a prison sentence of up to two years.

      Can you go to Jail for Breaching an AVO?

      Yes, you can go to jail for breaching an AVO. It is up to the court to decide whether you deserve to go to jail for the breach. You may only receive a fine if it is your first offence and not a severe breach. On the other hand, you would likely go to jail if it is a severe breach of the AVO or your second offence.

      Minor breach of AVO

      Minor breaches of an AVO include calling or texting the protected person after they have contacted you. One minor breach of an AVO should not land you in jail. But if you commit several consecutive minor breaches of the AVO, it could land you in jail.

      5 examples of breaching an AVO

      A defendant could commit breaches of an AVO. Here are a few examples of breaching an AVO:

      • Communicating with the protected person (e.g., email, text message, phone calls, etc.)
      • Asking a third party to contact the protected person for you (e.g., family, friends)
      • Damaging the protected person’s property
      • Physically or verbally assaulting or threatening the protected person
      • Coming within a short distance of the protected person (the AVO outlines the minimum distance that the defendant must stay away from the protected person)

      What if the Protected Person Breaches an AVO?

      The protected person cannot breach the AVO as it does not restrict their behaviour, only that of the defendant. This often leads to a situation where a defendant can be contacted by the protected person first and respond, triggering a breach.

      If you are facing an AVO, it is important that you consult a lawyer immediately who can advise you of your obligations and how to comply with the order.

      How to report a breach of AVO?

      The protected person should contact their local police to report a breach of AVO. Not only will it create a police report of the incident, but it will prevent the defendant from causing further harm to the protected person.

      In addition, the protected person can contact their lawyer to help notify the court of the incident.

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