A defendant is not guilty of a criminal offence by having an AVO made against them and the AVO is also not listed on the defendant’s criminal record. However, knowingly breaching an AVO is a criminal offence, punishable by a maximum penalty of two years in prison and/or a fine of $5500. If a breach involves physical violence there is a presumption the defendant will go to jail if found guilty.
If the defendant breaches the AVO, a report of the breach should be made to police as soon as possible. The police should then investigate the alleged breach. The victim should also make their own notes of the breach, for example, in a diary, together with the name and station of the police officer they reported the breach to, and the police event number for the incident (also called the ‘E number’). Women’s Legal Services NSW has a publication called the AVO Breach Diary which can be used for recording breaches of AVOs.
If police decide that there is enough evidence to create a reasonable suspicion that the defendant knowingly breached the AVO they have an obligation to charge the defendant. NSW Police have a pro-investigation policy for all domestic violence offences. There is no such thing as a ‘minor’ or ‘technical’ breach of AVO. Depending on the circumstances, police can issue the defendant with a court attendance notice or make an arrest.
If police charge the defendant with a breach, the defendant will need to attend court and may plead guilty or not guilty. It is unlikely that the maximum sentence will be given unless the breach is very serious, or if there is a history of domestic violence offences. Other penalties may include a fine or a good behaviour bond.
Under section 12 of the Crimes (Domestic and Personal Violence) Act 2007, if a person pleads guilty or is found guilty of a domestic violence offence, the court is to direct that it be recorded on the person’s criminal record as a domestic violence offence. Multiple offences of a similar nature are relevant to issues of bail and sentencing on future offences.
If the defendant has a gun licence or a permit, it is suspended when an interim AVO is made. Once a final order is made, the gun licence is automatically cancelled and an application for another licence cannot be made for 10 years, unless the AVO is revoked (cancelled) (Firearms Act 1996 (NSW), section 11 and Weapons Prohibition Act 1998 (NSW), sections 17 and 18).
Police and military officers claim that these provisions restricting firearms do not apply to them, as they do not hold licences or permits for firearms. This has caused concern for protected persons when police or military officers are defendants in AVO and domestic violence offence proceedings. These concerns have been raised as an issue for law reform by legal services and support services for women experiencing domestic violence.
Working with children check
In NSW there is a requirement that all persons volunteering or employed in child related work be subject to a satisfactory Working With Children Check. This involves a search of national criminal histories from CrimTrac. The check previously required checking for ‘relevant AVOs’. However changes in 2012 with the Child Protection (Working with Children) Act 2012 (NSW) mean that an AVO of itself is not ‘a disqualifying offence’ nor ‘a trigger offence requiring a risk assessment to be undertaken’. However, an AVO may form part of a risk assessment if a ‘trigger offence’ has been identified in the check therefore requiring further risk assessment to be undertaken.