A Domestic Violence offence generally involves criminal conduct committed against a person with whom the accused has, or has had, a domestic relationship. Domestic relationships can include current or former spouses or partners, family members, children and, in some circumstances, extended family or kinship relationships. 

Domestic Violence offences can include:

• common assault;
• assault occasioning actual bodily harm;
• reckless wounding;
• stalking or intimidation;
• property damage; and
• other threatening, violent or abusive conduct.

Domestic Violence does not necessarily involve physical injury. Depending on the offence, threatening or intimidating conduct may also result in criminal charges. 

Elements of a Domestic Violence Offence

The elements the Prosecution must prove will depend on the particular criminal charge. Generally, the Prosecution must establish beyond reasonable doubt that:

1. A Domestic Relationship Existed

The Prosecution must establish that the accused and complainant were in a relationship recognised as a domestic relationship under NSW law.

2. The Alleged Offence Occurred

The Prosecution must prove each element of the particular offence alleged, such as assault, stalking, intimidation or property damage.

Evidence may include:

• statements from the complainant and witnesses;
• photographs of injuries or damaged property;
• CCTV footage;
• police body-worn camera footage;
• text messages, emails or social media communications;
• medical evidence; and
• other relevant police material. 

What Are the Penalties for Domestic Violence Offences?

The penalties depend on the specific offence and seriousness of the allegations. Some Domestic Violence offences can carry significant terms of imprisonment.

When determining the appropriate sentence, the Court may consider:

• the seriousness of the conduct;
• any injuries caused;
• whether the offending was repeated;
• the relationship between the parties;
• the accused person’s criminal history;
• whether there was a guilty plea;
• rehabilitation and remorse; and
• the accused person’s personal circumstances.

Depending on the offence, sentencing options may include a Conditional Release Order Without Conviction, Community Correction Order, Intensive Correction Order or Full-time Imprisonment.

Apprehended Domestic Violence Orders

A Domestic Violence matter may also involve an Apprehended Domestic Violence Order (ADVO). An ADVO can impose conditions restricting a person’s behaviour, contact with the protected person or attendance at particular locations.

An ADVO itself does not necessarily mean that a person has been convicted of a criminal offence. However, breaching an ADVO can result in separate criminal charges. 

Pleading Guilty

If you plead guilty to a Domestic Violence offence, the matter will generally proceed to sentencing.

The Court may consider the police facts, your criminal history, personal circumstances, character, rehabilitation and any remorse shown. Your lawyer can also provide the Court with supporting material and make submissions about the circumstances of the offence and the appropriate penalty.

A guilty plea may be taken into account when the Court determines the sentence.

Pleading Not Guilty

If you plead not guilty, the Prosecution must prove the alleged offence beyond reasonable doubt.

Your lawyer can examine and challenge the evidence, including:

• the complainant’s account;
• inconsistencies between witness statements;
• CCTV or body-worn camera footage;
• medical evidence;
• electronic communications; and
• other weaknesses in the Prosecution case.

If the Prosecution cannot prove the offence beyond reasonable doubt, you should be found not guilty.

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Defending a Domestic Violence Charge

Depending on the circumstances, possible defences or issues may include:

• self-defence;
• mistaken or false allegations;
• lack of intention or recklessness;
• disputing that the alleged conduct occurred;
• challenging the reliability or credibility of witnesses;
• duress;
• necessity; or
• identifying inconsistencies in the Prosecution evidence. 

Every case is different, and the appropriate defence will depend on the particular allegations and available evidence.

Which Court Will Hear a Domestic Violence Matter?

Many Domestic Violence offences and ADVO proceedings are dealt with in the Local Court of NSW. More serious criminal charges may proceed to a higher court depending on the offence and circumstances.

Your lawyer can advise you about where your matter will be heard and what to expect throughout the court process.

How We Can Help

At Chidiac & Associates, we understand that Domestic Violence allegations can have an immediate and significant impact on your personal and professional life.

We can assist by:

• reviewing the police brief and evidence;
• advising you about your charges and legal options;
• representing you in both criminal and ADVO proceedings;
• identifying available defences;
• negotiating with prosecutors where appropriate;
• seeking withdrawal or reduction of charges where available;
• preparing defended hearings and trials; and
• preparing sentencing material if you plead guilty.