In both New South Wales and Queensland, if you are charged with a criminal offence against a person with whom you are deemed to be in a ‘domestic relationship’, the offence is most likely to be filed as an Apprehended Violence Order (AVO) in New South Wales, or as a Domestic Violence Order (DVO) in Queensland.
Due to increasing incidents of domestic violence, the New South Wales Parliament enacted the Crimes (Domestic and Personal Violence) Act 2007 (CDPVA) giving the state police stronger powers to combat cases, as well as introducing a mandatory sentencing regime for certain violent offences.
As a result, periods of imprisonment are now imposed for breaches of these orders or for incidents involving an allegation of domestic violence. In New South Wales, section 14(4) of the Crimes (Domestic and Personal Violence) Act 2007 states that if you are charged with breaching an Apprehended Violence Order and you are alleged to have used violence, imprisonment must be imposed, regardless of whether it is your first time before a court.
What constitutes a domestic relationship?
A domestic relationship includes people who are, or have been:
- Married or are de facto
- in an intimate personal relationship (which may or may not be of a sexual nature)
- living in the same household or residential facility
- in a relationship involving dependence on the ongoing paid or unpaid care of the other person
- in cases of an Aboriginal or Torres Strait Islander person, an extended family member or kin of the other person
What constitutes domestic violence?
A domestic violence offence is when you have a domestic relationship with another person and you:
- assault, physical abuse or attempt or threaten to assault, that person
- destroy or damage their property or harm their animal (or threaten to do this)
- stalk, harass or intimidate them, or
- breach an Apprehended Violence Order (AVO) that they have against you.
What happens if you are charged with an offence?
If the police compile enough evidence, you can be charged and provided with a Court Attendance Notice (CAN). If this occurs, it’s imperative to seek legal advice as soon as possible.
It is common for police to charge a person with multiple offences arising from the same act in domestic violence matters. A common example is a charge of assault in addition to a charge of stalking or intimidation. In some cases, a lawyer may be able to negotiate with the police to withdraw some or all charges, depending on the strength of the evidence.
What happens if you go to court?
In these cases, police serve alleged offenders with a mini brief containing all the evidence the prosecution will use to try to prove the case against you.
The mini brief contains:
- what is alleged to have occurred
- a copy or recording of the victim’s statement
- photographic evidence of the victim’s injuries or damaged property
For your first court date, also known as the first mention, you may be asked how you plan to plead - guilty or not guilty. It is highly recommended that you obtain legal advice before making this decision.
If necessary, you can ask the court to adjourn your case (put it on hold) so you can obtain appropriate legal advice. If the court agrees to adjourn, it will probably not be for longer than 14 days.
What are the likely sentences and penalties?
When punishing domestic abuse offenders, courts often impose harsh penalties. However, because of the frequency of the offences and the Crimes (Domestic and Personal Violence) Act 2007 (CDPVA), there is a good chance that a criminal conviction will be recorded and a jail sentence applied in severe cases.
As domestic violence is taken very seriously in all states, a conviction is likely even for first-time offenders. However, the likely penalty for domestic violence offences ultimately depends on the circumstances of the offence/s, the circumstances of the offender and any criminal history the offender has.
For less serious offences, such as a contravention of an AVO where violence is not involved, the court may impose a non-custodial sentence such as a Good Behaviour Bond or a Community Work Order.
In limited circumstances, it is possible to ask the court for leniency and have the matter dealt pursuant to Section 10 of the Crimes (Sentencing Procedure) Act 1999. An order under Section 10 means that the court finds the matter proven without proceeding to conviction.
Has a DVO or AVO been made against you?
If so, it’s crucial that you speak to an experienced Domestic Violence Lawyer. Don't delay, you need to speak with an experienced criminal lawyer regarding domestic violence or physical abuse matters as soon as possible to protect your rights.
Further information - mcmillancriminallaw.com.au/domestic-violence
Contact McMillan Criminal Law today for a chat in our Brisbane, Gold Coast, Ipswich or Tweed River offices.
Phone: 0418 738 172