The Crimes (Domestic and Personal Violence) Act 2007 (The legislation) of New South Wales is being updated to try to better address the prevalent domestic violence in the State. The new domestic violence laws are to commence on 1 December 2024 or on an earlier day to be appointed by proclamation.
There are two main new domestic violence laws in New South Wales, namely:
- The new offences of Breaching an Apprehended Domestic Violence Order (ADVO), and
- Serious Domestic Abuse Prevention Orders.
Click here for a complete guide on domestic violence laws for more.
New Breach of Apprehended Domestic Violence Orders
The new aggravated versions of ADVO breaches are intended to respond to the dangers posed by repeated and intentional breaches of apprehended domestic violence orders (ADVOs).
The two new types of ADVO breach offences introduced in New South Wales are:
- Knowingly breach of an ADVO with the intention of causing physical or mental harm against the protected person (PINOP) or to cause the PINOP fear of same, being the new section 14(1A) offence of the legislation, and
- Persistently breaching an ADVO on three or more occasions within a 28 day period.
Breach of ADVO with Intent to Cause Physical or Mental Harm
This new breach ADVO offence carries up to 3 years imprisonment and/or $11,000 fine for contravening an ADVO condition or restriction if the offender did so with an intention of causing physical or mental harm or the fear of causing the same to the protected person (or the safety of another person). This is the new section 14(1A) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
This offence fills in the hole that the current existing offence of breach of ADVO didn't. The existing breach ADVO offence did not have the element of an intention of causing physical or mental harm aspect. The new breach ADVO offence is therefore harder to prove as the prosecution must not only prove that there was an intentional breach of an AVO condition, but also that the alleged offender intended to cause physical or mental harm.
Furthermore, the new breach of ADVO offence is a specific intent offence. This effectively means that for the offence to be proven, the prosecution is required to prove beyond reasonable doubt that the alleged offender had an intention to cause a specific result, namely, the causing of physical or mental harm at the time of the ADVO breach.
Because the offence is a specific intent offence, it allows for an alleged offender to raise as a defence, that he or she was incapable of forming the requisite intention to cause the specific result due to self-induced intoxication (according to section 428C(1) Crimes Act 1900). However, an alleged offender cannot rely on intoxication as a defence in this way if he or she resolved before becoming intoxicated to commit the ADVO breach offence or became intoxicated in order to strengthen his or her resolve to commit the ADVO breach offence (according to section 428C(2) Crimes Act 1900).
A person intends to cause the protected person physical or mental harm, or the protected person to fear for the safety of the protected person or another person, if he or she knows that the conduct is likely to cause the harm or fear.
The prosecution is not required to prove that the alleged offender actually caused the protected person physical or mental harm or the protected person to fear for his or her safety or the safety of another person.
Breach of ADVO on Three or More Times Within 28 Days
This new offence under section 14(1C) carries a maximum penalty of 5 years imprisonment and/or $16,500 fine if a person knowingly contravenes a prohibition or restriction specified in an Apprehended Domestic Violence Order (ADVO) made against him or her, and:
- On at least 2 other occasions within a period of 28 days immediately before the contravention, the alleged offender knowingly contravened a prohibition or restriction specified in an ADVO in relation to the same protected person, or the same ADVO, whether or not in relation to the same protected person, or an ADVO arising from the same application under Part 10, whether or not in relation to the same protected person, and
- A reasonable person would consider the conduct would be likely, in all the circumstances, to cause the protected person physical or mental harm, or the protected person to fear for the safety of the protected person or another person, whether or not the harm or fear was in fact caused.
In comparison to the above two new breach of ADVO offences, the already existing section 14(1) offence of knowingly contravene a prohibition or restriction specified in an AVO made against that defendant carries a maximum penalty of 2 years imprisonment and/or $5,500 fine.
Defences to Breach ADVO Offences in New South Wales
Defences that will result in an acquittal to a breach of ADVO offence in New South Wales according to section 14(3) include the following:
- Breaching the ADVO was necessary in order to attend mediation under s21, or
- Breaching the ADVO was done in compliance with the terms of a property recovery order.
Section 14(2) states that an accused person is not guilty of subsection (1) ADVO breach offence unless:
- In the case of an ADVO made by a court, he or she was served with a copy of the order or was present in court when the order was made, or
- In any other case, he or she was served with a copy of the ADVO.
Penalties for ADVO Breach Offences
The following is a list of the applicable maximum penalties for the different types of ADVO breach offences in New South Wales from least to most severe:
- Knowingly contravene ADVO: 2 years imprisonment or $5,500 fine, or both (section 14(1)).
- Breach of ADVO with an intention to cause physical or mental harm: 3 years imprisonment or $11,000, or both (section 14(1A)).
- Breach of ADVO on 3 or more occasions within a 28 day period: 5 years imprisonment or $16,500 fine, or both (section 14(1C).
Breach of ADVO Sentences in New South Wales
Unless the court otherwise orders, a person who is convicted of a section 14(1) ADVO breach offence must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person, according to section 14(4). This requirement reflects how serious the courts are to take ADVO breach offences that involve violence. This does not apply if the person convicted was under 18 years of age at the time of the alleged offence.
The can decide not to impose an imprisonment sentence at its discretion, in which case the Magistrate must provide reasons for taking such a course (section 14(6)).
Aiding, Abetting, Counselling or Procuring an ADVO Breach
Section 14(7) states that a person is not guilty of an offence of aiding, abetting, counselling or procuring the offence against subsection (1) if he is a protected person under the order concerned.
A person who attempts to commit an ADVO breach offence is guilty of the ADVO breach offence as though it was committed, according to section 14(9).
Aggressive Prosecution of ADVO Breach Offences in NSW
The police commonly aggressively prosecute instances of ADVO breach offences including the possible ADVO breach offences occurring in the community. In fact, the legislation requires police officers to comply with strict rules.
Section 14(8) requires that, If the police officer or another police officer suspects on reasonable grounds that the person has committed an ADVO breach offence or if an alleged contravention of either subsection by the person has been reported to the police officer or another police officer, a police officer must make a written record of the reasons for:
- A decision by the police officer not to initiate criminal proceedings against a person for an alleged contravention (whether or not the person is arrested), or
- A decision by the police officer not to proceed with criminal proceedings against a person for an alleged contravention of an ADVO.
Section 14(1D) states that if on a prosecution of a person for an offence under subsection (1A), the court or jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence under subsection (1):
- The court or jury may acquit the accused person of the offence under subsection (1A) and find him or her guilty of an offence under subsection (1), and
- The accused person will be liable to punishment accordingly.
Similarly, section 14(1E) states that if on a prosecution of a person for an offence under subsection (1C), the court tor jury is not satisfied that the offence is proven but is satisfied that the accused person committed an offence under subsection (1) or (1A):
- The court or jury may acquit him or her of subsection (1C) and find that person guilty of subsection (1) or (1A), and
- The accused person will be liable to punishment accordingly.
Prospective Application of the New ADVO Breach Offences
The new ADVO breach offences of section 14(1A) and (1C) do not apply in relation to a contravention of an ADVO that occurred before the commencement of these new laws.
For customised advice we recommend calling our office to book a confidential chat with our domestic violence lawyers Sydney team.
Serious Domestic Abuse Prevention Orders
The next big domestic violence laws update is the introduction of the serious domestic abuse prevention orders (SDAPO) which gives more protection in the sense of protecting against past, current and potential future intimate partners of a person being subjected to violence. It works as a protection against abusive domestic and potential domestic relationship(s).
The making of an SDAPO also means that any firearms or weapons licence or permit one holds is revoked.
The SDAPO proceedings are civil in nature, not criminal. This means that the standard of proof is easier. The standard of proof for civil proceedings is the balance of probabilities. In comparison, the standard of proof in criminal proceedings is beyond reasonable doubt.
What is a Serious Domestic Abuse Prevention Order?
A serious Domestic Abuse Prevention Order (SDAPO) is an order a court may make prohibiting, restricting, imposing requirements and other provisions as considered appropriate to prevent the defendant from engaging in domestic abuse in relation to family members of the person, former, current, or potential intimate partners of the person , or persons in a domestic relationship with an intimate partner of the person, according to the new section 87C(1) of the legislation.
What a SDAPO Order Cannot Contain
A SDAPO order cannot contain provisions that require a defendant to do any of the following:
- Answer questions or provide information orally,
- Answer questions, or to provide documents or other information, that are subject to client legal privilege (legal professional privilege),
- To disclose protected confidence within the meaning of the Evidence Act,
- To provide documents or other information that is held by the defendant in confidence as part of a banking business unless certain circumstances apply outlined in section 87C(2) of the legislation.
When a SDAPO Order Can Be Made
The NSW Police or the Director of Public Prosecutions (DPP) can apply to the court for a serious domestic abuse prevention order against a defendant if:
- The defendant is at least 18 years of age;
- During the previous 10 years, the defendant when at least 16 years of age, has been convicted of 2 or more domestic violence offences with a maximum penalty of 7 years imprisonment or more, or has been involved in a serious domestic abuse activity; and
- There are reasonable grounds to believe that the making of the SDAPO will protect a family member, former, current or potential intimate partner, or a person in a domestic relationship with an intimate partner against domestic abuse.
This is contained in section 87B(1) of the legislation.
A person can be subjected to a SDAPO if he or she is or was at the time of a serious domestic violence offence, charged, whether or not tried or acquitted or following a conviction, the conviction has been quashed or set aside. This sets a low threshold and can apply to someone who has been charged but found 'not guilty' or the charge withdrawn.
The court when considering the making of a SDAPO will consider the views of family member, former or current intimate partner(s), and any person in a domestic relationship with an intimate partner of the person, if available to the court.
The court can also take into account less reliable evidence than the standard expected in criminal proceedings in the sense that an court can allow hearsay evidence to be admitted and considered in determining an application for a SDAPO to the extent that the evidence if from a reliable source and is otherwise relevant and of probative evidence.
Duration of a SDAPO Order
A SDAPO order takes effect when it is served on the defendant or on a later date specified in the order, but once it takes effect it has effect for the period specified in the order which must not exceed 5 years.
The court can make a second or subsequent SDAPO order against the same person.
Breaching a Serious Domestic Abuse Prevention Order Offence and Penalties
The maximum penalty that applies for knowingly breaching a SDAPO order while the order is in effect is 5 years imprisonment or $33,000 fine, or both (section 87E of the legislation).
Can I Appeal a Serious Domestic Abuse Prevention Order Made Against Me?
Section 87F of the legislation provides a right to appeal against the decision of the court making a SDAPO order. If the order was made by the local court, the appeal may be made in the Supreme Court. If the Supreme Court made the SDAPO order, the appeal may be made to the Court of Appeal. The appeal is a right on a question of law, but the court's leave will be required if the appeal is based on a question of fact. This makes it difficult to appeal unless the grounds of the appeal is because there has been an error of law.
An appeal can be made within 28 days after the date on which the SDAPO order was made. Leave from the court is required if you are lodging an appeal outside the 28 days period.
Upon lodging an appeal against a SDAPO order, does not stay (freeze) the operation of the SDAPO order concerned. The court's leave is required to stay it. The court can stay the operation of the order upon lodging an appeal if satisfied that it is safe to do so, having regard to the need to prevent the person engaging in domestic abuse of one or more of the persons referred to in the section 87B(1)(c) of the legislation.
Can I Vary or Revoke a Serious Domestic Abuse Prevention Order?
The same court that made the SDAPO order can also at any time vary or revoke the order upon an application to vary or revoke it is made under section 87G of the legislation.
An application to vary or revoke an SDAPO can only be made by the person against whom the order was made with the leave of the court and leave is only to be granted if the court is satisfied that there has been a substantial change in the relevant circumstances since the order was made or last varied.
The court that makes the SDAPO against a person can on application or on its own motion, vary or revoke an existing Apprehended Domestic Violence Order made against the person if the court is satisfied that in all the circumstances it is proper to do so.
Wherever a SDAPO is inconsistent with an ADVO, the SDAPO prevails to the extent of the inconsistency.
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.
