Clarity Law

Specialist Criminal Law Firm Queensland
Tuesday, 04 July 2023 17:00

Breaching a Domestic Violence Order for the Second Time in Queensland: What Are the Consequences?

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Breach DVO 2nd time

 

As an experienced criminal lawyer practising in Queensland, I understand the seriousness and complexity of domestic violence cases. Domestic Violence Orders (DVOs) play a crucial role in ensuring the safety and protection of individuals facing domestic violence. In this article, we'll explore the consequences of breaching a DVO (technically the charge is contravening a DVO) for the second time, providing insights for people who may find themselves in such a situation.

 

Understanding Domestic Violence Orders (DVOs) in Queensland

First things first, let's clarify what a Domestic Violence Order (DVO) is and why it matters. In Queensland, a DVO is a court-issued order (or a temporary order issued by the police) designed to prevent future acts of domestic violence. Its purpose is to safeguard people and maintain a safe environment for all parties involved.

A DVO comes with specific conditions, such as keeping a certain distance from the protected person or refraining from any contact, or requiring the respondent to give written permission for the aggrieved to in her presence.

Complying with these conditions is of utmost importance. Failure to adhere to the terms of a DVO can have severe consequences.

 

Consequences for Breaching a DVO in Queensland

Breaching a DVO is considered a criminal offence in Queensland, and the consequences can be substantial. The penalties for breaching a DVO vary depending on the severity of the breach, and they are imposed to deter further breaches and protect the safety of the aggrieved as well as to indicate to the population of Queensland that the courts treat a breach of a DVO seriously.

The recent community focus on domestic violence means the police have the power to respond swiftly when a breach is reported. They can arrest the respondent, charge them with an offence, and bring them before the court. The severity of penalties depends on factors such as the nature of the breach, any harm caused, and the respondent's previous history.

As a lawyer, I've seen how DVO breaches can lead to fines, probation orders and even imprisonment. The court considers a second breach as an aggravating factor when determining the punishment. It's essential to understand that breaching a DVO in the courts mind not only puts the safety of the aggrieved at risk but also leads to serious legal consequences for the person breaching the order.

 

Breaching a DVO for the Second Time in Queensland

Now, let's dive into what happens when someone breaches a DVO for the second time. Repeat offenders face heightened consequences and increased penalties compared to first-time offenders. The court takes a strong stance against those who persistently breach DVOs, recognizing the importance of protecting victims from ongoing harm.

When it comes to penalties, the courts will impose stricter sentences for repeated breaches. This could mean longer periods of imprisonment or more substantial fines. Additionally, the court may be less inclined to grant bail or allow pre-trial release for individuals who have breached a DVO on more than one occasion.

It doesn’t always mean a second breach will lead to imprisonment but it is a major factor in determining the penalty.

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Bail

The law states that where in the past 5 years a person has a conviction for a charge of breaching a DVO and they are arrested for another breach of a DVO (no matter how mild or serious the breach is) they are in a show cause position when it comes to bail.

In most situations, the onus is on the prosecutor to demonstrate the defendant should not be granted bail. However, in a ‘show cause’ situation, the onus is reversed, and the defence must prove the defendant is not an unacceptable risk for bail;

The court when assessing someone‘s suitability for bail will look at the following factors

  • the nature and seriousness of the offence
  • the defendant’s character, antecedents (such as a personal history including their criminal history)
  • associations, home environment, employment and background, and their likelihood of committing further offences
  • the defendant’s age
  • the history of any previous grants of bail
  • the strength of the evidence against the defendant
  • whether a surety is necessary or a cash deposit
  • how long the defendant might stay in jail if bail not granted

Bail will be refused if there is an unacceptable risk that if bail were granted the defendant would;

  • fail to appear on the adjourned date
  • commit further offences
  • endanger other people
  • be a danger to himself or someone named on the DVO
  • interfere with witnesses

In our experience the police wont grant bail where there is a previous breach unless the new offence is very minor.  Where this occurs the law states the defendant must be bought before a Magistrate who will ultimately decide if bail is granted or not.

This will usually mean the defendant having to endure a night or two in the watch house before they can be bought before a Magistrate.

One of the biggest issues for bail is where does the defendant live if bail was granted? The court is not going to allow them to live with the aggrieved and wont kick the aggrieved out of the house. It also makes it much harder to find that alternative address as in most cases the defendant is in the watch house with extremely limited access to the outside word.

Let me give a recent example we dealt with that illustrates the difficulty (this example is very typical of what occurs in most cases). The client had been charged with breaching the DVO for the 2nd time by being at the home without written permission that was required under the order (he did have verbal permission to be there) and for grabbing the shoulders of his partner. The partner contacted the police, the police investigated and arrested the client Saturday afternoon. The police denied bail as he was in a show cause position, this meant he would not be able to go before a Magistrate until Monday morning.

Luckily as we had acted for the client for the last time he had breached the order he was able to call me from the watch house. As he didn’t have access to his phone he was not able to give me the contact details of his sister or mother. I had to use social media and other searches to find his sister, contact her, make arrangements for the client to live with his mother and prepare for a bail application on the Monday.

I was able to briefly see the client at the watchhouse Monday morning before court started to get all the information we needed for the bail application. We went before the Magistrate and convinced her that the client was not an unacceptable risk if bail was granted. The client was then granted bail on strict terms and released.

This meant obviously the client didn’t have to spend months on remand and also allowed us to more easily communicate and make a plan on what to do with the pending breach charge. Its obviously a very stressful situation for the client sitting in the watchhouse wondering if he will get bail and quite frankly stressful for me noting if I don’t get the client bail then he will spend months in jail even though when he eventually pleads guilty he wont likely get sentenced to any prison time (update: he eventually was sentenced to probation so no prison time and no conviction was recorded).

 

Modification of the Current Order

We have a whole article on amending a DVO after a breach

In essence where there is a second breach of a DVO the court must consider amending the current DVO to better protect the aggrieved. This amendment might include:

  1. Limiting the ability of the defendant to see or communicate with the aggrieved or asking people to contact the aggrieved
  2. Order the defendant to leave the premises and not come back (an ouster order)
  3. Making the defendant attend an approved intervention program
  4. Not allowing the defendant to come to the house without written permission
  5. Limiting how close the defendant can come to the aggrieved
  6. Preventing the defendant from contacting the aggrieved totally except through lawyers.

Its critical to get immediate legal advice as once the order is amended it is almost impossible to convince the court to relax any of the new conditions.

 

Support and Resources for Individuals Facing DVO Issues

Facing a DVO breach can be emotionally overwhelming and legally daunting. It's essential to remember that you're not alone and that there are resources available to support you during this challenging time.

Seeking professional legal advice is paramount. An experienced lawyer can guide you through the legal process, explain your options, and help you present your case effectively. They can advocate for your rights, ensuring that your voice is heard in court.

In addition to legal support, there are various support services and helplines dedicated to assisting people accused of domestic violence. They offer emotional support, counselling, and planning for the future.

DVConnect’s Mensline can support men who are accused of abuse against their partner, ex-partner or other family member. Mensline is a free and confidential helpline that assists men to change their behaviour.

The Queensland government has a list of approved of providers of intervention programs that the court will recognise. That list can be accessed by clicking here.

 

Conclusion

Breaching a Domestic Violence Order for the second time in Queensland carries severe consequences. The courts take a strong stance against repeat offenders to protect the safety and well-being of victims. It's crucial to understand the seriousness of DVO breaches and the potential legal implications they entail.

If you find yourself facing a DVO breach, remember that there is support available. Seek legal advice from a trusted lawyer who are actually experts in domestic violence cases. Reach out to support services and helplines for emotional support and guidance.

 

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further no obligation information or advice then you can either;

1.       Use our contact form and we will contact you by email or phone at a time that suits you

2.       Call us on 1300 952 255 seven days a week, 7am to 7pm

3.       Book a time for us to call you

4.       Email the firms founder This email address is being protected from spambots. You need JavaScript enabled to view it.

5.       Send us a message on Facebook Messenger

We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information about the charge. You wont be chased or hounded to engage us.  Remember its critical you get advice before going to court, this offence can have an impact on you, your family and your employment or business.  

We can also help if a family member has been denied bail and need to make an application for bail urgently.

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Steven Brough

Steven Brough is a criminal defence lawyer and founder of Clarity Law with over 22 years experience he has appeared in almost every court in Queensland representing clients charged with criminal offences and getting them the best outcome possible.