What Happens if I Breach an Apprehended Violence Order in New South Wales?

by &
Information on this page was reviewed by a specialist defence lawyer before being published. Click to read more.
Restraining order

A Tasmanian Supreme Court judge is facing criminal charges over allegations he contravened an apprehended violence order  on three separate occasions while he was in New South Wales.

The back story

62-year old Justice Gregory Geason pleaded not guilty in Hobart Magistrates’ Court last month to criminal charges relating to allegations of common assault and intimidation.

He is now required to appear before Downing Centre Local Court in Sydney on 22 February 2024 to face three charges of breaching the apprehended violence order that was issued in Tasmania, by engaging in conduct in New South Wales on 20, 27 and 29 November 2023.

Although the details of the allegations are sketchy, it is understood they relate to “rage, anger and aggression” including “verbal abuse” resulting from “jealousy” towards a former partner.

Implications for Tasmania

The charges against him have caused uncertainty in Tasmania’s court system, leading to debate within the State’s Parliament as to whether he would remain a judge considering the gravity of the allegations.

The Tasmanian Government originally announced that it would hold an inquiry to decide whether he would remain as a judge.

However, the inquiry did not get off the ground and was replaced by a government motion to suspend him with a view to restoring confidence in the justice system.

Justice Gleason responded that any suspension would be ‘unconstitutional’ given the presumption of innocence – the fundamental principle that a person is to be presumed innocent unless and until proven guilty in a court of law.

He foreshadowed legal action in the event a decision was made to suspend him.

The judge is currently on leave and has provided a written guarantee to Tasmanian MPs that he will not perform duties or any functions in his capacity as a judge until the conclusion of the allegations levelled against him.

Apprehended violence orders apply to conduct nationwide

Laws were enacted on 25 November 2017 providing that apprehended violence orders issued in any state or territory in Australia are enforceable nationwide.

This means that although Justice Gleason’s AVO was issued in Tasmania, it is indeed capable of being contravened by conduct that occurs anywhere else in Australia, including in New South Wales.

What are the conditions of apprehended violence orders in NSW?

The conditions of an apprehended violence order can be broad and depend on the circumstances of the allegations.

However, every AVO issued in New South Wales will have mandatory conditions, which are that the recipient must not engage in any of the following conduct in relation to the ‘protected person’:

  • Assault or threaten,
  • Stalking, harassment or intimidation, or
  • Intentionally or recklessly destroying or damaging property.

Additional conditions may include not contacting the protected person, approaching within a specified distance of the protected person or not attending a place where he or she may live or work.

The offence of contravening an apprehended violence order in NSW

Section 14 of the Crimes (Domestic and Personal Violence) Act 2007 makes it an offence punishable by a maximum penalty of 2 years in prison and/or a fine of 50 penalty units to contravene an apprehended violence order by conduct in New South Wales.

When can the offence be established?

To establish the offence, the prosecution must prove beyond reasonable doubt that a person knowingly breached a condition or restriction contained in an apprehended violence order.

The offence of contravening an AVO can occur regardless of whether the AVO is interim (also known as a ‘telephone AVO’, which can be issued on an urgent basis before a case goes to court for the first time), provisional (which is usually issued between court dates) or final (issued at the finalisation of proceedings if the basis for the AVO application is admitted or proved).

However, it is important to be aware that proof of knowledge must be established, which means an accidental or careless breach is not enough to establish the offence.

A number of legal defences also apply to the charge, including duress, self-defence and necessity, as well as legal exceptions – for instance, if a person otherwise breaches a non-association or distance prohibition by attending court.

An AVO is also not enforceable unless it was validly served on a person.

What happens if I am accused of breaching an apprehended violence order?

If a person is charged with breaching an AVO, the matter will be brought before a New South Wales Local Court where he or she can plead guilty or not guilty.

Pleading not guilty

If a plea of not guilty is entered, the defendant – or a criminal defence lawyer on his or her behalf – can prepare and send a document to the police known as ‘representations’ which calls for the withdrawal of the proceedings, and the basis upon which that request is made.

If the case nevertheless proceeds, it will ultimately reach a defended hearing where the witnesses – including the complainant – will normally take the witness stand and testify as to what they say occurred. Each such prosecution witness will be subject to cross-examination (questioning) by the defence.

Other relevant material may also be sought for tender to the court; for example, images or transcripts of text messages and CCTV footage.

The defendant will then decide whether or not to take the witness stand, and in any event the defence can call any other witnesses through which material may be tendered as evidence.

Closing verbal submissions will then be made by each party and the magistrate will decide whether or not the prosecution has proven each and every element of the offence beyond a reasonable doubt, whether it has disproved to the same standard a legal defence and/or whether a legal exception applies.

The magistrate will then deliver a verdict of guilty or not guilty.

Pleading or being found guilty

In the event the defendant pleads guilty or is found guilty, the magistrate will then take and read any materials handed up by either party – which may include character references, an apology letter and/or materials relating to counselling or programs on behalf of the defendant – hear verbal submissions by each party and advise of the penalty.

In that event, the magistrate has a broad range of potential penalties at his or her disposal, which may include:

  • A ‘non conviction order’ such as a section 10(1)(a) dismissal or conditional release order (good behaviour bond) without conviction,
  • A section 10A conviction with no further penalty,
  • A fine,
  • A conditional release order with conviction,
  • A community correction order (another form of good behaviour bond),
  • An intensive correction order (which is essential a more onerous form of good behaviour bond), or
  • Prison time.

It is important to be aware the law makes clear that a person who is convicted of contravening an AVO through an act of violence must be given a prison sentence, unless the court orders otherwise and records its reasons for not imposing a prison sentence,

Going to court for an AVO or breach of AVO?

If you are going to court over an application for, or alleged contravention of, an apprehended violence order, call Sydney Criminal Lawyers 24/7 to arrange a free first conference with an experienced defence lawyer who will explain the situation in plain terms, advise you of your options and the best way forward, and fight for the optimal outcome.

Receive all of our articles weekly

Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

Your Opinion Matters