Family Intervention Order or Multiple AVO Breaches
Charges;
- Persistent Contravention of Notices or Orders (125A)
- Contravention of Order Intending to Cause Harm (123A)
- Contravention of Family Violence Order (123)
The laws in Victoria in relation to domestic violence are unforgiving, and this case presented as one of the most challenging intervention order breaches that we have had to deal with.
Should you breach a domestic violence intervention order multiple times in Victoria, you will be locked up unless you get the help from experienced domestic violence lawyers. If the charges are made out then this can happen at the time of sentencing. Often it happens prior to the matter being heard, because the police oppose bail and fight to leave defendants on remand (locked up before court has been finalised). In many cases the Bail Act makes it much easier for this to happen.
Magistrates, encouraged by police, the legislation and the media, take a hard line when it comes to domestic violence. Anyone charged with domestic violence should seek urgent advice from a lawyer.
Facts of the case
The client met his partner in March of 2013. The relationship progressed quickly and two months later the client and his partner moved in together. Within one month there was an incident involving domestic violence. A family violence protection order (also known as an AVO) was sought by the client’s partner. The relationship ended briefly but within a week the client had moved back in, in contravention of the order.
The order was eventually varied to allow contact but clause one (cannot commit family violence) remained. The order was varied at the request of the client’s partner (also known as the complainant when criminal charges attach, or the AFM or affected family member in relation to the family violence intervention order).
In August of the same year there was another incident. The police were called, attended and entered the property under the powers set out at s57 of the Family Violence Protection Act, the client was subsequently charged. At this point the relationship was over. The intervention order was then reverted to a full order, preventing any contact between the two parties. This did not stop the client from attempting to contact the complainant over a hundred times from August through to October 2013.
The client was arrested three times during this period and, amazingly, released each time, something that wouldn’t happen now given the changed to the bail laws in 2018. On the fourth arrest the client was arrested and remanded into custody. It was a waste of time to seek bail, because the client presented an unacceptable risk (see bail section). We attended the police cells and took instructions from the client. We entered a plea of guilty to multiple charges, including the very serious charges of persistently breaching a family violence intervention order and breaching a family violence intervention order with an intention to cause harm. The client received a penalty of six months gaol, with one month to serve immediately and the balance of five months wholly suspended for 12 months. This meant that the client had to serve 30 days before being able to be released, fortunately for him he had already served 18 days whilst on remand.
The client received this sentence because of the many aggravating features associated with his offending;
- Multiple breaches and the serious nature of the breaches;
- He had attended the complainant’s property in the early hours of the morning causing fear to the complainant
- Sent multiple emails and made multiple phone calls
- He followed the complainant to work.
On advice the client did not wish to appeal and was prepared to do the 30 days prison and be subject to a suspended sentence for 12 months (suspended sentences are no longer available in Victoria).
Just seven days after his release from prison the client again contacted the complainant multiple times. This was extremely problematic because the client was now breaching the conditions of a suspended gaol sentence.
Appealing Family Violence Charges
Fortunately the client called our office before the police could arrest him. We immediately advised him to appeal his sentence. We could do this because the client had offended within 28 days of being sentenced. At the time of receiving his sentence of 30 days imprisonment, he had already accrued 18 days of pre-sentence detention. This meant that the new offending had occurred only 19 days after the sentence had been imposed. The client had 28 days to appeal his sentence and subsequently could lodge an appeal within time.
We then advised the client to attend rehabilitation. The client had a significant alcohol problems, whereby every time he drank to inebriation he would contact the complainant. The client entered a residential rehabilitation facility. He stayed there until the time of his appeal at the County Court.
Upon attending the County Court, we convinced the prosecution not to allege the new offending, as at that stage it had not been dealt with and could not be considered a prior matter. We then urged the Judge to defer sentence for a further period because there was no potential for the client to complete a Community Corrections Order. The Judge agreed and although initially was minded to impose a suspended sentence, adjourned the case part-heard before passing sentence.
The point of a section 83A deferral is to allow the client to be released for a further period and undertake rehabilitation on their own terms to prove to the Court that they are worthy of being given an opportunity.
We submitted to the Court that upon successful completion of the client’s residential rehabilitation stay, the Court should:
a) set aside the original Magistrates’ Court decision;
b) remove the gaol sentence from his record; and
c) impose a fine in relation to all the offending.
The Court agreed and the matter was adjourned for a further four months.
Unfortunately during the deferral period the client not only left the residential rehabilitation centre early but once again contacted the complainant in the matter. He was again charged with persistently breaching a domestic violence order and breaching a domestic violence order with an intention to cause harm to the complainant.
This was an unbelievable situation. The client had been given an opportunity to not only avoid doing any further gaol time but also to avoid having the gaol sentence on his record. He only had to stay on the path of rehabilitation and not commit further offences.
Although he left the residential facility early, the client did continue to see a psychologist on a weekly basis. He also continued doing community service at the local Salvation Army and he kept attending AA meetings. In this period he had completed four months of live-in rehabilitation. These were all positives that had to be taken into account.
Results
On the return date, and despite the new offences, we submitted that a fine was still appropriate. Taking into account the client’s rehabilitative efforts the Court agreed, but also decided to record the 30 days that had already been served, on his record, something we were trying to avoid.
Critically though the Judge set aside the original Magistrates’ Court orders. If those orders had remained the client would have been facing a breach of suspended sentence regarding the new offences, meaning that he would have had to serve an extra five months in prison.
Further to that, if the client had received a suspended sentence in the first instance from the County Court Judge, prior to the deferral period, the client would have breached that sentence and would have likely ended up serving an immediate gaol sentence in relation to the new offending.
Following the conclusion of the appeal, we attended the Magistrates’ Court to finalise the remaining two matters, one being when the client was first released from prison and the other being offences that occurred during the period of the deferral.
Because the Judge had set aside the Magistrates’ Court Orders and re-imposed sentence after the new offences occurred, the sentence subject of the appeal could not be said to be a prior conviction per the Criminal Procedure Act (CPA). Section 3 of that Act states that a previous conviction is not a Magistrates’ Court order that has been set aside per section 256 of the Criminal Procedure Act.
Since the client had no matters that could constitute a criminal history, the client was sentenced in the Magistrates’ Court as an offender with no prior history, and received a fine.
From a defence perspective the client was making it very hard for us to keep him out of gaol because despite being given a number of opportunities, he continued to offend. He was very lucky not to go to prison again.
The client avoided gaol for two reasons.
- Firstly, our experience with offenders (particularly first time offenders) dealing with substance abuse issues. We understand that they need time to address the addiction. In this case the client was given a number of chances to address his addiction and may well have got over the line, but it took time.
- The other critical factor was having a firm understanding of both the Criminal Procedure Act and the Sentencing Act and using both to the client’s advantage.
This case study highlights the importance of engaging specialist criminal lawyers to assist you if you are facing charges in relation to domestic violence.
