Domestic violence is treated as a serious criminal offence under NSW law, with strict penalties, even for first time offenders. Importantly, charges can arise from both physical and non-physical actions, including threats, emotional abuse, or harassment.

Many people don’t realise that even one incident can lead to legal action with lasting consequences. This article will guide you through the key points you need to know including:

• The types of domestic violence offences
• Potential penalties
• The legal process
• Available defences
• Where to find support

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WHAT IS A DOMESTIC VIOLENCE CHARGE?

The Crimes (Domestic and Personal Violence) Act 2007 (NSW) is the key legislation in New South Wales which governs domestic violence related offences. Section 11(1) of the Act defines a “domestic violence offence” as:

• “(1) In this Act, “domestic violence offence” means an offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship”.

Domestic violence offences encompass all sorts of criminal offending, some common charges include physical assault, threats, intimidation and coercive control. What distinguishes a domestic violence offence from other criminal offences is that it occurs within the context of a domestic relationship.

WHAT IS A DOMESTIC RELATIONSHIP?

A domestic relationship is the type of relationship where two or more people share and live in the same household. Section 5 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) defines what type of relationships are considered “domestic”. A domestic relationship can include an intimate relationship, such as marriage, de-facto partnerships, or dating, and the law provides a defined scope for these relationships.

This can include the relationship between individuals and their:

• Husband or wife,
• De-facto partner,
• Ex-partner,
• Children,
• Family member,
• Room mate, etc.

A range of behaviours can occur within these relationships in a domestic setting, and these behaviours may lead to domestic violence charges or be classified as family violence under the law.

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WHAT OFFENCES ARE COMMON IN DOMESTIC VIOLENCE CASES?

Common domestic violence charges our firm often encounters includes offences such as:

• Common assault,
• Stalking or intimidation,
• Damage to property,
• Sexual assault,
• Breach of ADVO (Apprehended Domestic Violence Order),
• Coercive control.

Domestic violence can take various forms, including physical force, sexual violence, and non consensual sexual acts. Sexual acts and non consensual sexual acts are also included as criminal acts in domestic abuse cases.

It is important to note that multiple charges can arise from a single incident. For example, one event might lead to charges for both assault and property damage, depending on the circumstances. This can significantly increase the severity of potential penalties a person may face.

Examples of behaviours that can constitute domestic abuse include acts of physical harm, bodily harm, emotional abuse, and controlling behaviours. These acts can cause significant harm to victims, whether through physical force or other means. In such cases where children are present, the crime is considered even more serious due to the additional harm and exposure to minors.

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WHAT HAPPENS AFTER YOU’RE CHARGED WITH DOMESTIC VIOLENCE?

Most domestic violence cases often begin with a report made to the police by the victim leading to the formal charge and possible arrest of the defendant. In many cases, a police officer may be involved in applying for protection orders to ensure the safety of victims. Once you are charged with a domestic violence offence your matter will usually run the following course:

1. Mention: Initially the matter begins at the local Court where your matter will be listed for mention, during this time the Court will make procedural orders, including for the prosecution to serve their evidence. The Court may also consider protection orders to safeguard the safety of victims, and a police officer can play a key role in this process.
2. Review and Advice: Once we have been served with the prosecution’s evidence against you, our lawyers will carefully study and conduct a detailed review of your case, this includes pinpointing inconsistencies in the evidence and checking whether the elements of the offences have been made. After our thorough analysis we will provide expert advice in relation to the best course forward – including whether to enter a plea of ‘Guilty’ or ‘Not guilty’. This is also the time where our lawyers, depending on your case, may be able to negotiate with prosecution to have your charges withdrawn. It is important to note that protection and safety for victims are central to the legal process, and breaching a protection order, such as by contacting the victim when prohibited, can result in further legal consequences.
3. Plea and Preparation: After we have provided our advice, as per your instructions, we will enter the plea on your behalf. Depending on your instructions the Court will either provide a date for your matter to be listed for Sentence or Hearing. During this time our team will begin to prepare your case by collecting your evidence, drafting submissions and preparing your subjective material in order to build a strong and irrefutable case.
4. Hearing: Depending on your plea, your matter will proceed to either sentence (if you plead guilty) or a hearing (if you plead not guilty). At a hearing both sides will present their evidence and arguments before a Judge or Magistrate where they will make a decision. At a sentence our lawyers will hand up your subjective material and make submissions which the court will take into consideration when determining your penalty. Our lawyers will advocate strongly for you at either stage to achieve the best possible outcome.

THE IMPORTANCE OF EARLY LEGAL ADVICE

Domestic violence charges are serious and carry severe legal and personal consequences. Seeking legal advice as early as possible is crucial to protect your rights, avoid mistakes, and strengthen your defence. At Faraj Defence Lawyers, we provide professional, compassionate support to guide you through every step of the process and fight for the best possible outcome.

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WHAT IS AN ADVO AND HOW DOES IT WORK?

ADVO stands for Apprehended Domestic Violence Order, which is a type of restraining order designed to provide protection for victims of domestic violence. It is a court order that contains conditions to safeguard an individual from violence, threats, harassment, or intimidation by someone they have or had a domestic relationship with. Section 48 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) gives a person the right to apply for an ADVO if they fear violence or harassment. A police officer can apply for an ADVO on behalf of a victim, especially in cases where immediate protection is needed. An ADVO can also prohibit the defendant from contacting the victim to ensure their safety. For further information about restraining orders and ADVO procedures in NSW, please refer to additional resources or seek legal advice.

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TYPES OF ADVO’S AND THEIR PURPOSE

ADVOs can have as little as 1 condition or as many as 10 conditions including things like no-contact, no approaching the home, no possession of prohibited firearms, etc. The purpose of an ADVO is to prevent harm before it occurs, rather than punish past conduct. The primary goal of an ADVO is to provide protection and ensure the safety of victims. ADVOs can include conditions that prohibit the defendant from contacting the victim to further support their safety and well-being.

There are 3 types of ADVOS:

• Provisional ADVO: A temporary order made urgently by police or the Court to provide immediate protectional until the next Court date.
• Interim ADVO: A short-term order made by the Court as the case proceeds through the Court system. Final ADVO: A long-term order made after the Court determines the matter or if both parties consent.

WHAT HAPPENS IF YOU BREACH AN ADVO?

An ADVO does not appear on your criminal record. However, breaching an ADVO is a crime that appears on your record and seriously undermines the protection and safety of victims. Breaching an ADVO not only violates legal protection measures but also puts the victim’s safety at risk. Contacting the victim, even indirectly—such as messaging through social media or passing messages via friends—can constitute a breach.

The offence of contravening an apprehended violence order is listed under section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which carries a maximum penalty of a term of 2 years’ imprisonment and/or a fine of up to $5,500.00.

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WHAT ARE THE PENALTIES WHEN CHARGED WITH A DOMESTIC VIOLENCE OFFENCE?

When charged with a domestic violence offence in NSW, you face serious penalties, including fines, community orders, or imprisonment. The specific penalty will depend on the nature of the offence and your personal circumstances. In such cases where a child is present or affected, courts treat the matter with additional seriousness, often imposing harsher penalties to protect children from exposure to violence.

ADDITIONAL CONSEQUENCES BEYOND SENTENCING

A person charged with a domestic violence offence or a contravene an ADVO can incur serious consequences beyond the immediate sentence.

A conviction can cause significant repercussions in one’s life which can seriously impact aspects of their personal life such as:

• Criminal record: A conviction stays on your record and can affect employment and reputation.
• Impact on visa’s or international travel: Some countries may deny visas to those with certain criminal convictions on their record, especially domestic violence related offences.
• Firearms ban: A conviction may often lead to firearm licence cancellation.
• Working With Children Check: A domestic violence record can disqualify you from obtaining or renewing a Working With Children Check, limiting job opportunities.
• Parenting or custody implications: A domestic violence related conviction can hinder your case in family matters, especially when relating to parenting or custody orders. Courts also consider the presence of a child during incidents of domestic violence as an aggravating factor, recognising the psychological harm and long-term impact on children. It is crucial to protect children from exposure to such violence.

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WHAT IF IT’S A FIRST OFFENCE?

While the law does recognise when someone has no prior record, even a first offence is treated as a serious crime. The legislation provides clear definitions for domestic violence offences. Section 3(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) lists the mitigating factors taken into account at Sentence, this includes individuals with little to no criminal history. Depending on the offence and the circumstances there may be alternatives to a criminal conviction.

One common outcome is a Section 10 dismissal under the Crimes (Sentencing Procedure) Act 1999 (NSW), which allows the Court to find you guilty of the offence, however no conviction is recorded. This penalty allows you to walk out of Court criminal record free – although not guaranteed – the Court will have to consider factors such as seriousness, harm caused and the offender’s overall character.

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CAN A DOMESTIC VIOLENCE CHARGE BE DROPPED?

In NSW, Domestic violence charges are brought by the Police, not the complainant, meaning they can continue legal proceedings against you even if the alleged victim does not want to. A police officer is responsible for pursuing charges to protect victims and address the crime of domestic violence.

Once charges are laid, only the police or prosecution can withdraw or drop charges. Several factors can lead to charges being dropped or downgraded, including lack of evidence, credibility concerns, inconsistencies in witness statements and others.

Legal intervention can play a critical role here, an experienced lawyer is able to identify weaknesses in the prosecutions case and make legal representations to the Police of Director of Public Prosecutions (DPP), and seek for withdrawal. Having strong legal representation is key to improving the chances of a positive outcome.

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WHAT ARE MY OPTIONS?

LEGAL DEFENCES THAT MAY APPLY

If you are charged with a domestic violence offence, several legal defences may apply depending on the facts of your case. The availability of these defences often depends on the legal definitions of domestic violence offences and the specific behaviours alleged under the law. Common defences include:

• False allegation: arguing that the accusation was fabricated or exaggerated.
• Self-defence: showing that your actions were necessary to protect yourself or someone else from harm.
• No intent: demonstrating there was no intention to commit the offence, such as accidental harm.
• Mental health condition: Arguing that a diagnosed mental health condition affected your responsibility or conduct.
• Not a domestic relationship: challenging whether the relationship meets the legal definition required under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

It is important to aware that the success of this defences ultimately rely on the available evidence and the circumstances of the incident.

PLEADING NOT GUILTY TO DOEMSTIC VIOLENCE CHARGES

If you plead NOT GUILTY to a domestic violence charge, your case will proceed to a hearing where the prosecution must prove, beyond a reasonable doubt, that you committed the crime laid against you. The process is designed to protect the rights of both the accused and victims, ensuring that all parties are treated fairly under the law. This means the prosecution has the onus of proof to establish every element of the offence and must present evidence strong enough to bring no doubt that you are guilty.

Your lawyer will challenge the prosecution’s case by cross-examining witnesses, testing the credibility and admissibility of evidence, and presenting your own evidence or defences. You are not required to prove your innocence but rather, it’s the prosecution's job to find you guilty. If the Court finds there is insufficient evidence, the elements haven’t been met or find a genuine defence which applies then you will be found not guilty and charges get dismissed.

PLEADING GUILTY TO DOMESTIC VIOLENCE CHARGES

If you decide to plead guilty to a domestic violence related offence then the matter is adjourned for Sentence. Pleading guilty to a domestic violence crime can result in penalties specifically designed to provide protection for victims and prevent further harm. This means the Court will hear submissions, assess harm caused and most importantly take any mitigating factors into consideration. Your lawyer will prepare and present these submissions to argue for the most lenient outcome possible, such as a

reduced fine, non-conviction penalty or, a conditional release order.

Even with a guilty plea the Court has the direction in sentencing, so expert legal representation can make a significant difference to the outcome of your penalty.

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GETTING BAIL WHEN CHARGED WITH DOMESTIC VIOLENCE

If you are arrested for a domestic violence related offence, depending on the seriousness of your case, you may be placed in custody whilst your legal proceedings move forward.

Individuals have the opportunity to apply for what’s known as Bail during this time. This allows for a person to be released from custody whilst their case is still ongoing. To get bail, you or your lawyer must make a bail application which is then heard in Court.

Your lawyer will prepare your application by bringing together material and drafting proposed conditions which will present to the Court the reasons why you should be granted bail. Your lawyer must show the Court that you do not pose an unacceptable risk to the victim or the community and must show you are wiling to appear in Court. Bail conditions are specifically designed to ensure the safety and protection of victims, helping to prevent further harm and support their well-being.

A strong, well-prepared bail application can make the difference between waiting for your court date in custody or at home. Our team can assist you in preparing and presenting your best case for release on bail.

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NEED HELP WITH A DOMESTIC VIOLENCE CHARGE?

Facing a domestic violence charge can be overwhelming, but you don’t have to go through it alone. Legal support is available for victims seeking protection from domestic violence, including court orders designed to safeguard your safety. Early legal intervention can significantly change the course of your case. At Faraj Defence Lawyers we can help you reach favourable outcomes by identifying possible defences, getting charges dropped, preparing strong submissions and running hearings.

We understand the stress and uncertainty that comes with these charges. Our experienced team is dedicated to protecting your rights, supporting victims, guiding you through the legal system, and working hard to achieve the best possible outcome.

If you or someone you know has been charged with a domestic violence offence, don’t wait. Contact Faraj Defence Lawyers today for a confidential consultation and let us help you take the next step forward.

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