Have you been charged with the Contravention of Order Intending to Cause Harm or Fear for Safety?
With the aid of an experienced domestic violence lawyer, you may be able to mount an effective defence to this charge. You and your lawyer will need to consider the following:
Can the prosecution prove all elements of the charge? Was your conduct not intended to cause fear of harm or harm itself? Was the other party involved also subject to a family violence order?
These factors, and others, may be relevant to your charge. They are certainly worth considering carefully before telling a court how you intend to plead, as the maximum penalties for a guilty finding are severe.
For more information, please read below or go here for a general overview of all family violence charges.
What is Fear or Harm?
Fear or Harm can be based on “mental harm” or “physical harm” or relate to the “apprehension” or “fear” in the protected person due to the accused conduct of these things. Mental harm can relate to psychological harm and suicidal thoughts, and physical harm can relate to actual physical harm or only threatened physical harm.
The offence
Section 123A of the Family Violence Protection Act 2008.
The prosecution must prove:
- The defendant was subject to an order; and
- The defendant breached that order by engaging in conduct that:(a) caused either physical or mental harm or fear for safety, or
(b) they should have known would probably cause harm/fear for safety.
The maximum penalty re s123A
Level 6 imprisonment with a maximum of 5 years, or a level 6 fine of 600 penalty units, or both.
Where will my case be heard re s123A?
A charge of Contravention of Order Intending to Cause Harm or Fear for Safety will most likely be heard in the Magistrates’ Court, but can be heard in the County or Supreme court but usually only when accompanying other more serious charges.
What to do next in relation to s123A Charge?
Contravention of Order Intending to Cause Harm or Fear for Safety is a serious charge that can result in imprisonment if proven. Magistrates in the current climate take a dim view of any charge relating to domestic violence. You should contact an experienced criminal defence lawyer today to ensure adequate time to prepare and to consider the best possible defence available to you.
The legislation re s123A
Section 123A Contravention of order intending to cause harm or fear for safety
(1) In this section—
“mental harm” includes—
(a) psychological harm; and
(b) suicidal thoughts.
(2) A person against whom a family violence intervention order has been made and who—
(a) has been served with a copy of the order; or
(b) has had an explanation of the order given to him or her in accordance with section 57(1), 60G(1) or 96(1)—
must not contravene the order intending to cause, or knowing that his or her conduct will probably cause—
(c) physical or mental harm to the protected person, including self-harm; or
(d) apprehension or fear in the protected person for his or her own safety or that of any other person.
Penalty: Level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum) or both.
(3) It is immaterial that some or all of the course of conduct constituting an offence against subsection (2) occurred outside Victoria, so long as the protected person was in Victoria at the time at which that conduct occurred.
(4) It is immaterial that the protected person was outside Victoria at the time at which some or all of the course of conduct constituting an offence against subsection (2) occurred, so long as that conduct occurred in Victoria.
(5) In a proceeding for an offence against subsection (2), it is a defence to the charge for the accused to prove that—
(a) the accused was the respondent under the family violence intervention order; and
(b) a family violence safety notice in relation to the same protected person and respondent was also in force at the time the offence was alleged to have been committed; and
(c) the accused’s conduct was not in contravention of the family violence safety notice.
(6) In a proceeding for an offence against subsection (2) constituted by contravening a recognised DVO, it is a defence to the charge for the accused to prove that—
(a) the accused was the respondent under the recognised DVO; and
(b) a family violence safety notice in relation to the same protected person and respondent—
(i) was issued after the recognised DVO was made; and
(ii) was in force at the time the offence was alleged to have been committed; and
(c) the accused’s conduct complied with the family violence safety notice; and
(d) the accused could not have complied with the recognised DVO at the same time.
