The likelihood of a defendant going to jail for AVO depends on whether there is a significant breach of the order, like the presence of violence.
You can also be charged for breaching an AVO if you commit consecutive minor offences that go against the conditions stipulated in the order.
All AVOs have conditions designed to protect the “person in need of protection” (PINOP) enlisted therein. If the defendant in an AVO doesn’t follow one or more terms, this will be seen as a violation of the conditions.
Section 14(4) of the Crimes (Domestic and Personal Violence) Act mandates the judge or magistrate of the Court to sentence a defendant to jail time if they broke an AVO by acting violently against a protected person and others listed in the order.
5 Breaches of AVO Examples
An AVO can be breached by contravening the conditions set forth in it.
It can be done in several ways, including but not limited to:
- Contacting the protected person: This can include phone calls, text messages, emails, letters, or any other form of communication.
- Approaching or coming within a specified distance of the protected person: This distance is usually determined by the court and is set in the AVO.
- Assaulting, threatening, or intimidating the protected person: This can include physical violence, verbal abuse, and other forms of intimidation.
- Damaging property belonging to the protected person: This can include the destruction of personal property or damage to a shared residence.
- Third-party contact: Contacting the protected person indirectly through friends, family members, or other individuals, even if they are acting as intermediaries.
It is essential to note that these examples are not exhaustive, and breaching an AVO can take various forms depending on the specific conditions mentioned in the order and the applicable laws in the jurisdiction.
Breaching an AVO may even occur if the protected person permits contact or action.
When a person’s safety is at stake, the law requires that the court’s decision be honoured, even if the parties concerned cannot come to terms with one another.
What Happens If You Breach an AVO?
A defendant breaching an AVO can have significant legal framework, potential penalties, and the factors that may influence the severity of consequences for the individual involved.
In addition to the legal penalties. Breaching an AVO can also have long-term consequences.
If a court decides that breaching an AVO has occurred, breaching AVO offence will exist on your criminal record and can have sentences from the court.
Breaching an AVO Jail Terms and Penalty
- Two years behind bars
- Fines of up to $5,000
- Bonds or other punishments for good behaviour
It’s important to note that sentencing is ultimately at the discretion of the court, and other factors such as the severity of the breach, the presence of any aggravating factors, and individual’s cooperation with authorities.
Can You Defend Yourself Against Accusations of Breaching an AVO?
Yes, you can defend yourself against malicious accusations of breaching an AVO. You can’t be found guilty of breaking an AVO in the following situations:
- Absence of Knowledge Defence: If the defendant didn’t know they were breaking an AVO condition at the time, this defence applies.
- Self-Defence: This applies if the defendant broke an AVO condition because they were acting in self-defence to protect himself, their property, or someone else.
- Defence of not being served with the AVO papers: This applies if the defendant was not given a copy of the AVO papers, which list the conditions of the AVO. This is true even if the AVO was made in Court while the defendant was absent.
- Mediation Defense: This defence is used if the defendant broke an avo condition while attending a mediation session ordered by the Court to settle the avo dispute.
- Property Recovery Order Defense: This applies if the defendant broke an AVO condition while going to the property to get his or her things, as ordered by the Court in a property recovery order.
When facing breaching an AVO accusations, you have the opportunity to present the following legal defence:
It Was Purely an Accidental Breach
In some instances, you may find yourself unaware that you breached your Apprehended Violence Order (AVO) without meaning to.
For example, if you go to a place without knowing the protected person is inside, you may have done so by accident.
If you break your AVO by accident, the police may decide to charge you with breaking an AVO, which is a crime.
But you can’t be found guilty of violating an AVO unless you do something on it that you know is against the law.
You Acted Under Duress
A defendant is not guilty of a crime if another person basically “forced” them to do it. The accused would have a defence if forced to do things that broke an AVO.
If the AVO says you can’t talk to the protected person, you can be charged with breaking the AVO even if the protected person makes the first move to talk to you.
You should talk to an AVO lawyer if you’re accused of contravening an AVO.
You Acted in Good Faith
A person may have a defence if they conducted the physical acts accused of but did so because they relied on an honest and reasonable but incorrect belief regarding a matter of fact (as opposed to a matter of law).
Breaching an AVO is a “strict liability offence,” which means that just knowledge of the breach is required to constitute criminal culpability.
The accused is not responsible for their actions if they honestly thought that a different set of circumstances existed.
You Were Unaware an AVO Was Made Against You
If the defendant was not present in court when the AVO was issued, had not been served with a copy of the order, or had not been informed of its existence, then this might be grounds for dismissal of the charges.
In summary, you can’t be found guilty of breaking an AVO in the following situations:
- Absence of Knowledge Defence: If the defendant didn’t know they were breaking an AVO condition at the time, this defence applies.
- Self-Defence: This applies if the defendant broke an AVO condition because they were acting in self-defence to protect himself, their property, or someone else.
- Defence of not being served with the AVO papers: This applies if the defendant was not given a copy of the AVO papers, which list the conditions of the AVO. This is true even if the AVO was made in Court while the defendant was absent.
- Mediation Defense: This defence is used if the defendant broke an avo condition while attending a mediation session ordered by the Court to settle the avo dispute.
- Property Recovery Order Defense: This applies if the defendant broke an AVO condition while going to the property to get his or her things, as ordered by the Court in a property recovery order.
What Happens If a Defendant is Found Guilty of Contravening an AVO?
When someone breaks an Apprehended Violence Order (AVO), they can be arrested and charged with breaking the order.
You may receive a Court Attendance Notice and be required to appear in court.
If convicted, the consequences can include a fine of up to $5,500 and/or imprisonment for up to two years.
If the breach of the AVO also involves committing another crime, you can be punished separately for both offenses.
This means you can face penalties for the AVO breach and any crimes you are convicted of.
If the breach involves violence, the violation is considered particularly serious and can result in imprisonment if convicted.
It’s important to note that any conviction for breaching an AVO will appear on your criminal record and may affect your ability to obtain specific jobs or pass a Working With Children Check.
It’s crucial to take AVOs seriously and adhere to the conditions outlined to avoid legal consequences.
What Happens if You Plead Guilty of Contravening an AVO?
If you agree that you did what you were accused of and the police can prove it, you should plead guilty.
You will usually get a shorter sentence, showing that you are sorry and you are remorseful about your actions.
Conclusion
Can you go to jail for AVO? You can go to jail for an AVO, however, it depends on whether there is a significant breach of the order, like the presence of violence.
You can also be charged if you commit consecutive minor offences that go against the conditions stipulated in the order.
If you are given an AVO and are then accused of breaking the AVO, you will be charged with a crime. If you are found guilty, you may face serious consequences, such as jail time and a criminal record.
Need An AVO Lawyer?
At Justice Family Lawyers, we understand the complexity of AVOs and DVOs, and we are committed to providing our clients with the highest quality legal advice and representation.
Our AVO lawyers and practitioners are highly experienced and knowledgeable, and we are committed to helping our clients receive the best possible outcome.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
