DOMESTIC VIOLENCE AND APPREHENDED DOMESTIC VIOLENCE ORDERS

DOMESTIC VIOLENCE

The legislation that regulates domestic violence in New South Wales is the Crimes (Domestic and Personal Violence) Act 2007.

What is domestic violence?

This Act does not provide a specific definition of ‘domestic violence’. The law in Australia however considers domestic violence as one person dominating or controlling another in a family-like or domestic relationship. This type of violence can include physical, sexual, psychological, economic and emotional abuse that occurs within a domestic relationship.

What is a domestic relationship?

A ‘domestic relationship’ is defined broadly in section 5 of the Act.

A person has a ’domestic relationship’ with another if the person:

  1. is or has been married to the other person; or
  2. is or has been the de facto partner of that other person; or
  3. has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature; or
  4. is living or has lived in the same household as the other person; or
  5. is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre or a detention centre); or
  6. has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person; or
  7. is or has been a relative of the other person; or
  8. in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship of the person’s culture.

Common offences

The most common offences that are prosecuted that relate to domestic violence include:

Penalties for domestic violence offences

The Crimes (Sentencing Procedure) Act 1999 imposes several requirements on courts sentencing offenders for domestic violence offences.

Section 4A(1) of the Act provides that when a court finds a person guilty of a domestic violence-related offence it must impose either:

  1. A sentence of full-time detention; or
  2. A supervised order (either an Intensive Corrections Order (ICO), a Community Corrections Order (CCO) or a Conditional Release order (CRO) that includes a supervision condition).

However, section 4A(2) of the Act states that a court may impose a different sentence if satisfied that it is more appropriate in the circumstances and give reasons for reaching that decision.

Intensive Corrections Order

An Intensive Corrections Order (ICO) is a custodial sentence of up to two years that the court decides can be served in the community. It is the most serious sentence that an offender can serve in the community.

Courts can add conditions to an ICO such as home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour.

If an offender breaches an ICO the offender does not go before the Local Court. Less serious breaches can be dealt with by a Community Corrections Officer, and more serious breaches can be referred to the State Parole Authority who may revoke the ICO, requiring the offender to serve the remainder of their sentence in custody.

A domestic violence offender can only be sentenced to an ICO if the court is satisfied that the complainant or likely co-residents can be adequately protected. For example, a domestic violence offender is not eligible for an ICO with a home detention condition if they are intending to reside with the victim.

Community Corrections Order

Community Correction Orders can be used by courts to punish offenders for crimes that do not warrant imprisonment or an ICO, but are too serious to be dealt with by a fine or lower-level penalty.

The benefit of a CCO is that it is a flexible sentence that the court can tailor to reflect the nature of the offence and the offender’s subjective circumstances.

The court can select from a range of conditions, such as supervision by Community Corrections Officers, community service work (up to 500 hours) and curfews, to hold a particular offender to account and reduce their risk of reoffending. A court can also mandate psychological treatment under this order.

CCOs can be imposed for a period of up to three years.

A CCO always has a requirement for an offender to be of good behaviour, meaning they are not to commit any further offences. If any conditions under this order are breached, the order can be called up by the court and the offender sentenced for the offence that placed them on the order along with the offence that brought them back before the court.

Conditional Release Order

There are two types of Conditional Release Orders, one where a conviction is imposed and one where a conviction is not imposed. Courts have the discretion to impose a conviction on a CRO if they consider it appropriate.

Courts typically sentence an offender to a Conditional Release Order without a conviction if they are before the court for the very first time, if the offence is not objectively serious in the circumstances and where the court is of the view that the offender is unlikely to present a risk to the community.

A conviction is usually imposed on a CRO when the court is of the view that the objective seriousness of the offence warrants a conviction. For domestic violence offences the principle of general deterrence plays greater weight, meaning the courts are required to reflect the community standards when sentencing.

The benefit of CROs is that the court can impose conditions such as drug and alcohol abstention, programs, non-association requirements or place restrictions where appropriate. CROs can also have a supervision condition. CROs can be imposed for a period of up to two years.

A CRO always has a requirement for an offender to be of good behaviour, meaning they are not to commit any further offences. If any conditions of this bond are breached, the bond can be called up by the court and the offender sentenced for the offence that placed them on the bond along with the offence that brought them back before the court.

APPREHENDED DOMESTIC VIOLENCE ORDERS

When charged with a domestic violence offence an Apprehended Domestic Violence Order is usually laid by the police against a defendant. These ADVO proceedings usually run alongside the substantive criminal charge or charges.

Domestic violence can involve a wide range of behaviour, including physical, emotional and verbal abuse, as well as stalking and intimidating a person, and so the police make an ADVO application to protect a person or persons from such behaviour.

Every ADVO prohibits:

  • assaulting, molesting, harassing, threatening or otherwise interfering with the protected person or a person with whom the protected person has a domestic relationship;
  • engaging in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship;
  • stalking the protected person or a person with whom the protected person has a domestic relationship; and
  • destroying or damaging the property of the protected person or a person with whom the protected person has a domestic relationship.

These orders are usually listed as condition 1(a)(b) and (c) on an ADVO and are considered mandatory orders. These mandatory orders also protect anyone with whom the protected person shares a domestic relationship.

More than one person can be listed as the protected person on a single order.

An ADVO may also include the following additional orders:

  • prohibiting or restricting the defendant from approaching or contacting the protected person;
  • prohibiting or restricting the defendant from approaching or entering the protected person’s home, workplace or any place the protected person frequents;
  • prohibiting or restricting the defendant from approaching or contacting the protected person within 12 hours of consuming illicit drugs or alcohol.

A court may also impose any prohibitions or restrictions on the defendant’s behaviour which appear necessary or desirable to the court and that ensure the safety and protection of the protected person and any children.

Provisional Orders

A Provisional order is a temporary order a NSW police officer can make for a specific period until either an Interim order is made or the application is determined by a court. A Provisional order has the same effect as a Final order.

Interim Orders

Interim orders are temporary orders that a court can make until the application has been determined in full. An Interim order has the same effect as a Final order.

This order remains in force until Final orders are made (unless the order is revoked) or the application is withdrawn by police or dismissed by the court. If the defendant is at court when the order is made the Interim ADVO starts immediately. If the defendant is not at court when the order is made it starts when the defendant receives a copy of the Interim order.

Final Orders

A Final order is made by a court and can be made as long as the court believes it is necessary to ensure the person’s protection.

Before making a Final order the defendant must either consent on a without admissions basis or if the ADVO proceeds to a hearing, the application is determined by the court after hearing all the evidence. Alternatively, if a defendant is not present at court, the court can make a Final order in their absence.

If the defendant does not consent to the making of a Final order, the court can make a Final order if after hearing all the evidence, it is satisfied that:

  • the protected person has reasonable grounds to fear and in fact does fear that the defendant will commit a personal violence offence against them, or that the defendant will intimidate or stalk them; and
  • such conduct is sufficient to warrant the making of an order.

The court can make a Final order regardless of whether the abovementioned conditions are fulfilled if:

  • the protected person is a child;
  • the person has a significant intellectual disability; or
  • the court is of the view that the defendant has committed or is likely to commit a personal violence offence against the protected person, and the making of the order is necessary to protect the person from further violence.

Variation of an ADVO

An interested party or a police officer may apply for a variation or revocation of an order at any time. This can include extending or reducing the order, amending or deleting any conditions or adding additional conditions.

The court may, if satisfied that in all the circumstances it is proper to do so, vary or revoke an Interim or Final ADVO. The court however may decline to hear a variation application if it is satisfied that there has been no ‘change in circumstances’ on which the making of the order was based and if the application is in the nature of an appeal against the order.

An application to vary or revoke a police-initiated order where a protected person is a child requires leave of the court. This particular application is covered in section 72B of the Act and follows strict considerations before the granting of leave is successful.

Property Recovery Orders

The court has power, when making a final or interim ADVO, to make a property recovery order where the defendant or protected person has left property at the premises occupied by the other party and where the ADVO prohibits the entering of this property.

A property recovery order may:

  • direct access to particular premises to either party and/or a police officer or any person authorised by the court to remove property;
  • specify the nature of access, on what terms and specify particular property or personal property.

If you have been charged with a domestic violence offence or have had an ADVO laid against you, call Karnib & Co Lawyers at any time on 0450503696 or email us on [email protected] to arrange a free consultation. For those who are unable to attend our offices, we offer conferences by telephone, Skype, Zoom and FaceTime anywhere around the world.