Since the introduction of new laws in June 2020, sentencing has toughened up for domestic violence offences and breach of AVO in New South Wales, with those found guilty being now more likely than ever to receive a jail sentence.
The Amendments to Sentencing Procedures have been implemented and have operated since 23 June 2020, resulting in changes to the NSW Crimes (Sentencing Procedure) Act 1999.
This Act guides magistrates in sentencing people who are convicted of domestic violence offences, or who breach an apprehended violence order (AVO). It also serves as a guide for solicitors and for self-represented persons, when making pleas about what sentence should be imposed.
Anyone who contravenes a condition of an apprehended violence order or is convicted of a domestic violence matter is now more likely than ever before to face a term of full-time custody.
Sections 4A and 4B of Crimes (Sentencing Procedure) Act
The two sections that amend the Act are reproduced below.
They are section 4A, dealing with the requirement for full-time detention or supervision, and section 4B, dealing with the protection and safety of victims.
4A Domestic violence offenders - requirement for full-time detention or supervision
(1 If a court finds a person guilty of a domestic violence offence, the court must impose on the person either-
(a) a sentence of full-time detention, or
(b) a supervised order.
(2) However, the court is not required to impose either of those sentencing options if the court is satisfied that a different sentencing option is more appropriate in the circumstances and gives reasons for reaching that view.
(3) For the purposes of this section, a "supervised order" is an order (being an intensive correction order, community correction order or conditional release order) that is subject to a supervision condition.
4B Domestic violence offenders - protection and safety of victims
(1) An intensive correction order must not be made in respect of -
(a) a sentence of imprisonment for a domestic violence offence, or
(b) an aggregate sentence of imprisonment for 2 or more offences, any 1 or more of which is a domestic violence offence, unless the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected (whether by conditions of the intensive correction order or for some other reason).
(2) If the sentencing court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes that the offender will reside with the victim of the domestic violence offence.
(3) Before making a community correction order or conditional release order in respect of a person whom the sentencing court finds guilty of a domestic violence offence, the court must consider the safety of the victim of the offence.
Consequences increasingly severe for breach of AVO or related conditions
These new laws must serve as a serious and urgent warning to anyone who has been made the subject of an AVO, or has been convicted of both an AVO and a related domestic offence. (Related domestic offences include property damage, stalking, harassment, intimidation and so on.)
Anyone in this situation needs to be very careful not to breach any AVO or related condition, bond, conditional release order (CRO), community correction order (CCO), intensive correction order (ICO), bail condition or parole.
The consequences are becoming increasingly severe and defending such matters is more complex.
False AVO claims now a problem across the community
The new approach, involving a crackdown on domestic violence and breach of AVO matters, and an increased likelihood of imprisonment of offenders, is presently very contentious.
We get many successful results defending false AVO claims. Unfortunately, the phony AVO is a problem right across the community and has repercussions that extend far beyond the realm of criminal law.
New laws have some retrospectivity, so don't wait for the cops to call
It is vitally important for anyone who has been accused of domestic violence or who is subject to an AVO to know that the laws have changed and we now live in a different world.
The new laws have some retrospectivity, so it is best you call your lawyer before the cops call you, to say your ex just remembered an incident which wasn't reported at the time and which occurred on, say, any date at all before the amendments came in.
In such circumstances police arrest on the say-so, and although the ex does not turn up at the hearing, which takes place at least 12 months later, they keep you in jail for that time and you're refused bail; or at least released on conditions such as daily reporting and curfews.
Unfortunately in these circumstances you will be considered guilty until proven innocent, with no way to get costs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.