First-time domestic violence charges

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First-time domestic violence charges are taken very seriously by the courts.
Australia Criminal Law
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First-time domestic violence charges are taken very seriously by the courts. In today's climate, it is not unusual for sentences of imprisonment to be imposed for these offences.

Generally, an Apprehended Domestic Violence Order (ADVO) will be applied for by police on behalf of complainants. This can significantly restrict a defendant's behaviour.

Can You Go To Jail for First-Time Domestic Violence?

A first-time domestic violence offender can be sentenced to imprisonment. The maximum penalty for a domestic violence common assault is 2 years imprisonment. More serious offences such as assault occasioning actual bodily harm carry a maximum penalty of 5 years in jail.

For less serious offences, alternatives to full-time jail such as an Intensive Corrections Order (ICO), Community Corrections Order (CCO) or a fine are possible outcomes.

In some circumstances, a person can receive a section 10 for domestic violence or a conditional release order without conviction.

Sentencing for First-Time Domestic Violence Offenders

The following factors will be taken into account when sentencing a first-time domestic violence offender:

  1. Objective Seriousness of the Offence – The more serious the offence, the more likely that a jail sentence will be imposed. This can include any injuries the victim has suffered (eg. For an offence of assault occasioning actual bodily harm), the degree of force used and the length of time of the offending.
  2. Aggravating Factors- If aggravating factors under s21A(2) of the Crimes (Sentencing Procedure) Act 1999 are present, there is an increased likelihood of a jail sentence being imposed. Aggravating factors include planned offending; if the victim had particular vulnerabilities or disabilities; if a weapon was involved; and if the offence occurred in the home of the victim.
  3. Mitigating factors under s21A(3) Crimes (Sentencing Procedure) Act 1999 will make it less likely that a sentence of imprisonment will be imposed. Mitigating factors include the offender being of good character, having good prospects of rehabilitation, being unlikely to re-offend and being remorseful for the offending.
  4. Mental Health – Mental health plays a significant role in whether a first-time domestic violence offender will be sentenced to jail. If a psychologist or psychiatrist report suggest that your mental health will deteriorate or you will not receive adequate treatment for any mental health conditions in custody, then this will reduce the likelihood of a jail sentence being imposed.

A specialist domestic violence lawyer will be able to prepare and present your case to reduce the penalty to be imposed on you. This can be to avoid a sentence of full-time imprisonment or in some cases no conviction for domestic violence.

Consequences for First-Time Domestic Violence Offenders

The legal consequences for first-time domestic violence offenders include:

  1. Domestic Violence Charges: If police are called to a domestic violence incident, they can lay criminal charges against you. This will require you to attend court unless you are able to get domestic violence charges dropped before the court date.
  2. Apprehended Domestic Violence Order (ADVO): The police can apply for an ADVO if a person has fears of the defendant. In many cases, police will apply for an AVO even where both parties explicitly state that they do not want an AVO. An ADVO can prevent a defendant from contacting the person in need of protection (PINOP), attending certain places (including their own home) and even contacting the PINOP.
  3. Criminal Convictions: If you plead guilty or are found guilty of a domestic violence offence, there is a high likelihood that the court will record a criminal conviction. This may impact future employment, travel and personal life.
  4. Family Law implications: The Family Court takes domestic violence allegations very seriously. Recent amendments to the Family Law Act 1975 have increased the weight the court will place on proven domestic violence offences. This can affect spend time arrangements with children as well as property settlement proceedings.

ADVO for a First-Time Offender

Police are required to apply for an ADVO against a first-time offender for any domestic violence offence. The ADVO will have standard conditions to not assault, harass or stalk the protected individual. There may be additional conditions added to the standard ADVO including:

  • No Contact Orders: no-contact orders on an AVO prohibits the defendant from directly or indirectly contacting the protected person. If children are involved the defendant will need to vary an AVO to allow contact for the purposes of spending time with children.
  • Place restrictions: the defendant may be prevented from entering certain places such as the PINOP's workplace and home (this is even if the defendant also lives in that home).
  • Firearms- An ADVO can require the respondent to surrender their firearms, or prohibit them from acquiring firearms.

Domestic Violence Statistics

The most common domestic violence offences last year were:

  • Assault – 41% or 41,379 defendants;
  • Breach of violence order – 39% or 38,760;
  • Stalking, harassment or threatening behaviour – 10% or 9,885;
  • Property damage – 7% or 7,285.

Of the 83,603 domestic violence defendants receiving a court judgement, most (94% or 78,259) were found guilty or pleaded guilty. For these defendants:

  • A fine was the most common sentence (25% or 19,559);
  • 19% (15,033) were sentenced to custody in a correctional institution;
  • 19% (14,872) were sentenced to an order of good behaviour.

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.

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