Domestic Violence Offences

It is important to seek legal advice from an experienced criminal defence lawyer when you have been charged with domestic violence related offence or breach of AVO. In NSW if you are found guilty of a domestic violence related offence or contravene a condition of an apprehended violence order (AVO), it is now more than likely you will face a term of full-time custody. This is because new Laws have been introduced in NSW in June 2020 that have toughened sentencing for these types of offences

It is important to that you obtain adequate advice from a one of our specialist criminal lawyers so that you understand your legal rights and obligations as a defendant. Here at Sydney Law Specialists, we ensure that we defend your matter. Our team of lawyers deal with Domestic Violence and AVO matters on a daily basis throughout all courts in NSW and interstate courts.

What is a domestic violence related offence? 

A domestic violence offence is an offence committed against another person, if the person who committed the offence has (or has had) a domestic relationship with the victim.

Common offences that give rise to a domestic violence offence occurs if you have a domestic relationship with another person and you:

• assault, or attempt or threaten to assault, that person
• destroy or damage their property (or threaten to do this)
• stalk, harass or intimidate them, or
• breach an Apprehended Violence Order (AVO) that they have against you

In NSW, if you’re guilty of a domestic violence offence, the Court will be required to impose one of the following types of sentences as punishment:

• a sentence of full-time detention, or
• a supervised order (being an intensive correction order (ICO), community correction order (CCO) or conditional release order (CRO) that includes a supervision condition).

However, the court may impose a different sentence if satisfied that it is more appropriate in the circumstances and gives reasons for reaching that view. 

In addition, on convicting an offender of a serious, a court must make a final apprehended violence order (AVO) for the victim’s protection, regardless of whether an interim AVO has been made or whether an application for an AVO has been made, unless satisfied that an order is “not required”.

What is a domestic relationship?

A domestic relationship includes people who are, or have been:

• Married
• In a de-facto relationship
• Relatives
• Intimate personal relationship (whether the relationship is, or has been of sexual nature)
• Living in the same household or residential facility.
• if you are Aboriginal or Torres Strait Islander—if you are or have been part of the extended family or kin of the other person.

What should I do if I have been charged with a domestic violence offence?

Domestic violence offences are serious offences. We recommend you seek legal advice as soon as you can if you have been charged with a domestic violence related offence AVO. Our team of specialised criminal lawyers can assist throughout the court process.

How will a domestic violence related offence affect my future?

If you are convicted of a domestic violence related offence you will find that you will face more obstacles in other areas of your life such as:

• Parenting disputes and family court matters relating to child custody – The Family Court can and does consider whether a parent has/or has had an AVO or domestic violence conviction involving a child.
• Working with children’s clearances 

Common Types of Domestic Violence Offences

• Common Assault
• Breaching an AVO
• Wounding or grievous bodily harm
• Sexual assault, sexual touching, or a sexual act
• Destroy/Damage property
• Stalk or intimidate
• Choking
• Assault occasioning actual bodily harm

Common Assault offences and Penalties 

A domestic violence common assault offence is an act where a person apprehends immediate and unlawful violence towards another person without consent.  This does not require actual physical contact.

Examples of common assault:

• Spitting at another person, whether or not contact is made,
• Striking another person without causing significant injury,
• Threatening to hurt another person,
• Throwing an item at another person whether or not contact is made,
• Raising a fist towards a person as though to hit that person,
• Physically restraining someone against their will.

What the prosecution must prove:

To be convicted of a common assault charge, the prosecution must prove each of the following elements beyond a reasonable doubt:

• You struck, touched or applied force, or threatened another person with immediate violence.
• The act was done intentionally or recklessly.
• Without consent.
• Without lawful excuse.

Possible defences for Common assault

Possible defences to a common assault charge include but are not limited to:

• Duress
• Necessity
• Self Defence

Local Court Penalty

Type of Offence	Maximum Penalty in the Local Court
Common assault: 61 Crimes Act 1900 (NSW)	2 years Jail and or /$5500 fine

Breach of an AVO and Penalties 

A defendant breaches an AVO when they knowingly do something that an existing AVO says they are not allowed to do.

Examples of a breach of AVO

• Contacting the PINOP when there is a no contact order in place

What the prosecution must prove:

To be convicted of a breach AVO, the prosecution must prove each of the following elements beyond a reasonable doubt:

• You breached an AVO condition; and
• You knew that you were breaching the AVO at the time.

Possible defences for Common assault

Possible defences to a breach AVO charge include:

• There was no AVO in force
• Your actions did not constitute a breach of the prohibition order

Local Court Penalty

Type of Offence	Maximum Penalty in the Local Court
Breach AVO: Section 14 Crimes (Domestic and Personal Violence) Act 2007 (NSW)	2 years Jail and or /$5500 fine

Grievous bodily harm offences/ Wounding with intent offences and Penalties 

The offence of assault occasioning grievous bodily harm (GBH) or wounding is an extremely serious offence.  The maximum penalty for this offence is 25 years imprisonment.

Wounding is defined as an injury that results in the breaking of the skin. An example of wounding is a cut to the lip.

Reckless wounding does not require the accused to have had the intention to cause grievous bodily harm.

Grievous bodily harm (GBH) is defined as a serious injury including permanent or serious disfigurement. An example of GBH is the breaking of a bone.

Examples of grievous bodily harm offences/ Wounding with intent offences:

• Punching someone in the face causing injury to the jaw
• Stabbing someone (without causing death)

What the prosecution must prove:

To be convicted of a grievous bodily harm with intent the prosecution must prove beyond a reasonable doubt:

• You wounded another person that causes breaking of the skin.
• You intended to cause grievous bodily harm to that person(s). The act was done recklessly as to causing actual bodily harm. 

Possible defences:

• Self defence
• You did not intend to cause grievous bodily harm.

Penalties:

Type of Offence	Maximum Penalty
Reckless wounding s35(4) Crimes Act 1900 (NSW)	7 years/SNPP 3 years
Recklessly cause wounding in company s35(3) Crimes Act 1900 (NSW)	10 years/SNPP 4 years
Reckless infliction of grievous bodily harm s35(2) Crimes Act 1900 (NSW)	10/SNPP 4 years
Reckless infliction of grievous bodily harm in company s35(1) Crimes Act 1900 (NSW)	14/SNPP 5 years
Wound or inflict grievous bodily harm with intent to cause grievous bodily harm or resist arrest s35(1)-(2) Crimes Act 1900 (NSW)	25/SNPP 7 years

We recommend you speak to one of our Specialised Criminal Defence Lawyers immediately after being charged with wounding or GBH.  It is important to understand the seriousness of this offence. Our team will fight to have your charges withdrawn or possibly negotiate the charges so that you are dealt with leniently.

Destroy/Damage property offences and Penalties

The offence of destroy or damage property is committed if a person intentionally or recklessly destroys or damages property belonging to another person.

Your matter can be dealt with either in the Local Court or District court depending on the value of the damage. If your matter stays in the Local Court, then the maximum penalty that can be imposed is 2 years imprisonment or a fine of $2,200.00. If your matter is to proceed to the District Court, then the maximum penalty that can be imposed is 5 years imprisonment.

Examples of Destroy/Damage property offences:

• Throwing another person’s phone during an accident causing the screen to break
• Setting fire to another person’s vehicle

What the prosecution must prove:

To be convicted of Intentionally or Recklessly destroy or damage property charge the prosecution must prove beyond a reasonable doubt:

• You damaged or destroyed property
• The property belonged to another person
• You intended to cause the damage or destruction, or you were reckless as to whether the damage or destruction could have been caused.

Possible defences:

Possible defences to an Intentionally or Recklessly destroy or damage property charge include but are not limited to:

• Duress
• Necessity
• Self-defence
• A lack of intent that you either did not intend any damage to be caused or foresee the possibility that any damage would be caused
• A claim of right to the property

Penalties:

Type of Offence	Maximum Penalty in the District court
Intentionally or recklessly destroy or damage property: s195 (1)(a)Crimes Act 1900 (NSW)	5 years Jail
Intentionally or recklessly destroy or damage property using fire or explosives: s195 (1)(b) Crimes Act 1900 (NSW)	10 years Jail
Intentionally or recklessly destroy or damage property in company (with another person): s195 (1A)(a) Crimes Act 1900 (NSW)	6 years Jail
Intentionally or recklessly destroy or damage property using fire or explosives in company (with another person): s195 (1A)(b) Crimes Act 1900 (NSW)	11 years Jail
Intentionally or recklessly destroy or damage property during a public disorder: s195 (2)(a) Crimes Act 1900 (NSW)	7 years Jail
Intentionally or recklessly destroy or damage property using a fire or explosives during a public disorder: s195 (2)(a) Crimes Act 1900 (NSW)	12 years Jail

Stalk or intimidate offences and Penalties

Stalking or intimidation with intent to cause fear of physical or mental harm is a serious offence.  If convicted the maximum penalty is five years’ imprisonment and/or a fine of $5,500.

An offence is committed if a person stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm.

Stalking a person can be defined as following a person around, watching or frequently visiting a person’s place of residence, business or work or any other place they frequently go to socialise or liaise. The definition of stalking also includes contacting or otherwise approaching a person online & phone communication. 

Intimidation is defined as conduct which amounts to harassment or molestation, approaching other persons by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) which causes the person to fear for their safety. The definition of intimidation also includes  any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

We recommend you speak to one of our Specialised Criminal Defence Lawyers immediately after being charged with this offence. Our team deal with Domestic violence offences on a daily basis. Our specialised lawyers will provide you with the necessary knowledge and preparation to assist in your court proceedings.

Examples of Stalk or intimidate offences:

• Following a person
• Approaching, watching, or frequenting a person’s residence, work, business or a place that a person frequents for a social or leisure activity.  For example: frequently showing up at a person’s gym.
• Conduct that amounts to molestation or harassment of a person. For example: watching a person’s house or giving a person unwanted flowers or gifts;
• Any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship.
• Trying to contact the person by any means (which includes using text messaging, email, social media, telephone, or other technologically assisted means) which causes the person to fear for their safety. For example: sending a person repeated or unwanted Facebook messages or phone text messages.
• Any conduct that causes a reasonable apprehension of violence or damage to any person or property.

What the prosecution must prove:

To be convicted of a Stalking or intimidation the prosecution must prove beyond a reasonable doubt:

• You had the intention to cause fear of physical or mental harm and 
• that their behaviour(s) committed or attempted constitute stalking or intimidation

The prosecution does not need to prove that the victim actually feared any physical or mental harm.

Possible defences:

Possible defences to a stalking or intimidation charge include but are not limited to:

• Duress
• Necessity

Penalties:

Type of Offence	Maximum Penalty
Stalk or Intimidate: s13 Crimes (Domestic and Personal Violence) Act 2007 (NSW)	5 years Jail and or /$5500 fine

Choking/Strangulation/Suffocate and Penalties

The offence of choking, suffocation or strangulation of another person is a serious offence.  The maximum penalty for this type of offence of 5 to 25 years imprisonment.

Section 37 provides for three separate choking offences. It is an offence under s 37(1A) Crimes Act 1900 to intentionally choke, suffocate or strangle a person without consent. The maximum penalty is 5 years imprisonment. If the person us rendered unconscious, insensible, or incapable of resistance the maximum penalty is 10 years imprisonment.

Under s 37(2), If the offender commits the act with the intention of enabling themselves to commit, or assisting another person to commit, another indictable offence the maximum penalty is 25 years imprisonment.

Examples of choking/strangulation/suffocate offences:

• Using a choke hold on a person during a fight
• Holding a pillow over someone’s mouth
• Using your forearm to pin a person by the neck

What the prosecution must prove beyond reasonable doubt:

• You unlawfully strangled the other person. 
• The strangulation was unlawful
• It was not consented to by the other person

Possible defences:

Possible defences to a choking/strangulation/suffocate charge include but are not limited to:

• Duress
• Necessity
• Self Defence

Penalties:

Type of Offence	Maximum Penalty in the District Court
Intentionally choke, suffocate, or strangle without consent: s37(1A) Crimes Act 1900 (NSW)	5 years jail
Recklessly cause other person to go unconscious, insensible, or incapable of resistance from choke, suffocate or strangulation: s 37(1) Crimes Act 1900 (NSW)	10 years jail
Choke, suffocate, or strangle causing unconsciousness, insensible or incapable of resistance with intent to commit another indictable offence: s37(2) Crimes Act 1900 (NSW)	25 years jail

Assault occasioning actual bodily harm offences and Penalties

The offence of Assault occasioning actual bodily harm is a serious offence.  The maximum penalty for this type of offence is 7 years imprisonment.

We recommend you speak to one of our Specialised Criminal Defence Lawyers immediately after being charged with Assault occasioning actual bodily harm.  It is important to understand the seriousness of this offence. Our team will fight to have your charges withdrawn or possibly negotiate the charges so that you are dealt with leniently.

Examples of Assault occasioning actual bodily harm offences:

• A black eye
• A deep scratch
• A bruise

What the prosecution must prove:

• you acted in a way that caused another person to fear immediate and unlawful personal 
• you touched another person without their consent
• you acted intentionally or recklessly
• that you caused an injury or injuries amounting to actual bodily harm.

Possible defences:

• Duress
• Necessity
• Self Defence
• Lawful correction

Penalties:

Type of Offence	Maximum Penalty in the Local Court	Maximum Penalty in the District Court
Assault occasioning actual bodily harm: s59 Crimes Act 1900 (NSW)	2 years Jail and or /$5500 fine	5 years jail
Assault occasioning actual bodily harm in company	2 years Jail and or /$5500 fine	7 years jail

Sexual Assault offences and Penalties 

Sexual Touching

Sexual touching can be defined as the act of touching another person with any part of the body, or with an object, in circumstances where a reasonable person would consider the touching to be sexual. The touching does not have to be on the skin to be considered sexual, it can be over the clothes to be captured in the definition. 

A person consents to sexual activity if they freely and voluntarily agree to the sexual activity. A person cannot consent if they do not have the capacity to do so due to their age or cognitive incapacity. A person cannot consent if they are asleep or unconscious. A person cannot consent due to threats or unlawful detainment.

A court can take into account whether the person was intoxicated, intimidated, threatened, or abused by a person with a position of authority when considering consent. A court will take into account all of the circumstances, including any steps taken to ascertain whether the alleged victim consented. 

What the prosecution must prove beyond reasonable doubt:

• A person sexually touches another person or incites someone else to
• The other person does not consent to the touching; and
• The person knows the other person does not consent.

Sexual Assault 

The offence of sexual assault is a serious offence. Sexual assault can be defined as the act of having sexual intercourse with another person without the consent of the other person, who knows that the other person does not consent to the sexual intercourse. The maximum penalty for this type of offence is 14 years imprisonment.

What the prosecution must prove beyond reasonable doubt:

• You had sexual intercourse with another person
• The other person does not consent 
• You knew the other person does not consent or were reckless as to whether the other person consented. 

Aggravated Sexual Assault 

Aggravated sexual assault can be defined as the act of having sexual intercourse with another person without the consent of the other person in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse. The maximum penalty for this type of offence is 20 years imprisonment.

Circumstances of aggravation are:

• at the time of, or immediately before or after, the sexual assault, you intentionally or recklessly inflicted actual bodily harm on the person or any other person who is present or nearby, or
• at the time of, or immediately before or after, the sexual assault you, threatened to inflict actual bodily harm on the person or any other person who is present or nearby by means of an offensive weapon or instrument, or
•  at the time of, or immediately before or after, the sexual assault, you threatened to inflict grievous bodily harm or wounding on the other person  or any other person who is present or nearby, or
•  you were in the company of another person or persons, or
• the other person is under the age of 16 years, or
• you were at the time of the offence in a position of authority over the other person
• the other person has a serious physical disability, or
• the other person  has a cognitive impairment, or
• you committed a break and enters with the intention of committing the sexual assault or any other serious indictable offence, or
• you deprived  the other person of his or her liberty for a period before or after the commission of the offence.

Penalties:

Type of Offence	Maximum Penalty in the District Court
Sexual Touching: s61KC Crimes Act 1900 (NSW)	5 years jail
Sexual Assault or intercourse without consent: s61I Crimes Act 1900 (NSW)	14 years jail
Aggravated Sexual Assault: s61J Crimes Act 1900 (NSW)	20 years jail

It is critical that you speak one of our specialised Criminal Defence Lawyers if you are charged with a sexual assault offence. Offences of a sexual nature are extremely serious and can mean terms of full-time imprisonment if you are found guilty.