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On 10th December 2008 the NSW Government introduced a new Act to cover Domestic and Personal Violence which replaced the provisions of Part XVA of the Crimes Act (NSW).
The Crimes (Domestic and Personal Violence) Act 2007 comprises numerous sections dealing with domestic related court orders and offences, and similar provisions involving personal problems between persons.
Apprehended Violence Orders
Section 16 sets out the criteria in order to obtain an AVO. The applicant must be able to satisfy a court on the balance of probabilities that the person has a domestic relationship with the other person, has reasonable grounds to fear, and in fact fears:
(a) the commission by the other person of a personal violence offence against the person, or
(b) the engagement of the other person in conduct in which the other person:
(i) intimidates the person or a person with whom the person has a domestic relationship, or
(ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
Section 16(2) allows for exceptions concerning children, persons suffering from an appreciably below average general intelligence function, or where there is a history of violence by the defendant. The court is not required to be so satisfied that such persons fear that such an offence will be committed, or that such conduct will be engaged in.
Section 17 requires that the Court take into account various considerations in deciding whether or not to make an order and further, in cases where an order is made, imposing only those restrictions that are necessary for the protection of the person in need of protection and also any children directly or indirectly affected.
Apprehended Personal Violence Orders
Section 19 stipulates a similar test for an applicant seeking an Apprehended Personal Violence Order as that of s.16 although excludes the provision of any history of violence that is allowed for in s.16.
Section 20 deals with the matters that the court may take into account in the process of making an order.
Pursuant to s.22 the Court can make interim orders to prohibit the Defendant’s conduct prior to the hearing of the matter complained of.
The making of Interim Orders is not limited to the Courts. Police, if they deem it necessary in the circumstances, can make interim orders to take effect immediately.
Section 26 gives Police the discretion whether or not to make a Provisional Order and in particular (s.26(2) ) in circumstances where “the police officer has good reason to believe a provisional order needs to be made immediately to ensure the safety and protection of the person who would be protected by the provisional order or to prevent substantial damage to any property of that person”.
However, there are circumstances where Police MUST make a Provisional Order, and these circumstances are covered in Section 27.
Contravention of AVO’s and APVO’s
Section 14 sets out the various offences and defences involved where a person contravenes an AVO as follows:
(1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence.
(2) A person is not guilty of an offence against subsection (1) unless:
(a) in the case of an apprehended violence order made by a court, the person was served with a copy of the order or was present in court when the order was made, or
(b) in any other case, the person was served with a copy of the apprehended violence order.
(3) A person is not guilty of an offence against subsection (1) if the contravention of the prohibition or restriction concerned:
(a) was necessary in order to attend mediation under section 21, or
(b) was done in compliance with the terms of a property recovery order.
(4) Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person.
(5) Subsection (4) does not apply if the person convicted was under 18 years of age at the time of the alleged offence.
(6) Where the court determines not to impose a sentence of imprisonment, it must give its reasons for not doing so.
(7) A person is not guilty of an offence of aiding, abetting, counselling or procuring the commission of an offence against subsection (1) if the person is a protected person under the order concerned.
(8) A police officer is to make a written record of the reasons for:
(a) a decision by the police officer not to initiate criminal proceedings against a person for an alleged contravention of subsection (1) or (9) (whether or not the person is arrested), or
(b) a decision by the police officer not to proceed with criminal proceedings against a person for an alleged contravention of subsection (1) or (9)if the police officer or another police officer suspects on reasonable grounds that the person has committed an offence against either subsection or if an alleged contravention of either subsection by the person has been reported to the police officer or another police officer.
(9) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.
A separate offence under this Act is created involving Intimidation and Stalking.
(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both.
(2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.
(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.
(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.
(5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.
This offence requires the prosecution to prove an “intent” to cause the other person to “fear physical or mental harm”. It is therefore a crime of specific intent and such intent must be proved beyond reasonable doubt.
(1) For the purposes of this Act, “intimidation” of a person means:
(a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or
Note. An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email.
(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or
(c) 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.
(2) For the purpose of determining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour. Whether conduct amounts to harassment or molestation will be a matter for the court to decide on an objective view of the evidence.
Section 8 defines Stalking as follows:
(1) In this Act, “stalking” includes the following:
(a) the following of a person about,
(b) the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity.
(c) contacting or otherwise approaching a person using the internet or any other technologically assisted means.
(2) For the purpose of determining whether a person’s conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.
Once again, whether a person’s conduct amounts to stalking, will be a matter for the court to decide on an objective view of the evidence.