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Breaching an AVO is a criminal offence. If police charge you, you will be brought before the Local Court, and if you are convicted you face up to two years in gaol, a fine of up to $5,500, or both. That is the penalty for the most basic version of the charge. Repeated breaches, and breaches meant to frighten or hurt the protected person, carry a great deal more.
Being charged does not mean you will be convicted, and it does not automatically mean gaol. But this is not a charge to turn up to court and hope for the best on.
What counts as a breach of an AVO?
An AVO is a set of orders telling you what you cannot do. Section 36 of the Crimes (Domestic and Personal Violence) Act 2007 puts three conditions into every AVO made in NSW. You must not assault or threaten the protected person, or anyone they are in a domestic relationship with. You must not stalk, harass or intimidate them. And you must not intentionally or recklessly damage their property or harm their animals.
Most orders add more on top, such as not going within 100 metres of where the protected person lives or works, or not contacting them at all except through a lawyer. You breach the order the moment you knowingly do something it prohibits. Section 14(1) makes that a criminal offence.
The breach does not have to be violent or dramatic. Sending a single text message when the order says no contact is a breach. Turning up at the protected person’s house to collect your tools is a breach. So is asking a friend to pass on a message, if the order prohibits contact directly or through another person.
The protected person cannot give you permission
This is the mistake we see most often. If the protected person rings you, invites you over, or wants to reconcile, and you go, you have still breached the order. The AVO binds you, not them. Only a court can change or revoke it.
Section 14(7) means the protected person cannot be charged with aiding your breach either, which is part of why police so often charge the defendant alone after a reconciliation goes wrong.
If you and the protected person want to get back together, or want the conditions relaxed, the answer is an application to vary or revoke the order. Not a private arrangement between the two of you.
Accidental breaches
The prosecution has to prove you acted knowingly. If you walked into a shopping centre with no idea the protected person was inside, you have not committed the offence, even though the terms of the order were technically contravened.
Police can and do charge people in those situations and leave it to the court to sort out. Knowing you have a defence is not the same as having it accepted.
The penalties for breaching an AVO in NSW
Section 14 now creates three separate offences. Which one police charge makes a large difference to what you are facing.
A standard breach under section 14(1) carries a maximum of two years imprisonment, 50 penalty units ($5,500), or both.
Breaching an apprehended domestic violence order with the intention of causing the protected person physical or mental harm, or making them fear for their safety or someone else’s, is a separate and more serious offence under section 14(1A). The maximum is three years imprisonment, 100 penalty units ($11,000), or both. The prosecution does not have to prove anyone was actually harmed or actually afraid. It is enough that you knew your conduct was likely to cause it.
Repeated breaches are the most serious. Under section 14(1C), if you knowingly breach an ADVO and you have knowingly breached on at least two other occasions in the 28 days beforehand, and a reasonable person would think that pattern was likely to cause harm or fear, the maximum is five years imprisonment, 150 penalty units ($16,500), or both. You do not have to have been charged with the earlier breaches for them to count.
If the more serious charges are not proven, the court can still find you guilty of a standard breach instead. That is what sections 14(1D) and 14(1E) do.
You will usually face more than one charge
A breach involving violence is charged as a breach and as the assault. Damaging property is charged as a breach and as malicious damage. Each carries its own penalty, and the fact you were subject to an AVO at the time is treated as an aggravating factor on sentence.
Will you go to gaol for breaching an AVO?
If the act constituting the breach was an act of violence against a person, section 14(4) says the court must sentence you to a term of imprisonment unless it orders otherwise. Where the court decides not to send you to gaol, section 14(6) requires it to give reasons for that decision.
In practice this does not make full time custody inevitable. A term of imprisonment includes an intensive correction order, which is a prison sentence served in the community under supervision. And the section deliberately leaves the court room to do something else. That is where the material you put before the court does its work: what actually happened, your record, your circumstances, and what you have done since.
Non-violent breaches sit differently again. A first breach involving one text message is a long way from a pattern of turning up at someone’s workplace. The full range of sentencing options is available, including a conditional release order under section 9 of the Crimes (Sentencing Procedure) Act 1999 and, in the right case, a section 10 dismissal with no conviction recorded.
Section 14(4) does not apply if you were under 18 at the time of the alleged offence.
When you cannot be found guilty
Section 14(2) says you cannot be convicted unless you were served with a copy of the order, or you were present in court when it was made. If the order was made in your absence and nobody served you, that is a complete answer to the charge.
Section 14(3) provides two further exceptions: where the contravention was necessary in order to attend mediation referred by the court, and where you were complying with the terms of a property recovery order.
Beyond those, the ordinary defences apply. The prosecution has to prove every element beyond reasonable doubt, including that you knew what you were doing and that your conduct actually fell within the terms of the order. Orders are often more ambiguous than the police fact sheet assumes.
What happens after you are charged?
Police can arrest you without a warrant if they suspect on reasonable grounds that you have breached. Whether you are released on bail or held in custody depends on the charge, your history and what else you are facing.
Breach matters are dealt with in the Local Court. Your first appearance is a mention, where you either enter a plea or ask for the police brief. If you plead not guilty, the matter is listed for hearing. If you plead guilty, or are found guilty, the court moves to sentence and will usually also look at whether the AVO itself should be extended or tightened.
A conviction goes on your criminal record and shows up on a Working With Children Check. If you have already been sentenced and you think the result was wrong, you generally have 28 days to appeal to the District Court under the Crimes (Appeal and Review) Act 2001, with a further period available by leave.
Frequently asked questions
Can I be charged if the protected person contacted me first?
Yes. The order restricts your conduct, not theirs. If the AVO says no contact and you reply to their message, that is a breach regardless of who started it.
What if I did not know the AVO existed?
You cannot be convicted unless you were served with the order or were in court when it was made. If neither happened, tell your lawyer straight away, because it goes to the heart of the charge.
Does a breach charge extend the AVO?
Not automatically. But the court dealing with the breach can vary the order, and in practice it often extends the duration or adds stricter conditions.
Will a breach conviction affect travel or work?
It can. A conviction appears on your criminal record for police checks and Working With Children Checks, and some visas and occupational licences require you to disclose it. That is one reason it is worth arguing for a non-conviction outcome where the facts support one.
Speak to a lawyer before your court date
If you have been charged with breaching an AVO anywhere in Sydney, call Blackridge Law on 02 9159 9010. We appear in Local Courts across Sydney every day and can tell you where you stand before you walk in.
This article is general information about NSW law and is not legal advice for your situation.