If you are bound by a restraining order and are charged with breaching the order, potentially very severe penalties apply. Any person who is bound by a Family Violence Restraining Order (‘FVRO’), violence restraining order (‘VRO’) or police order, must strictly comply with the terms of the order. A failure to do so leaves the person liable to be charged with the criminal offence of breaching a restraining order. The maximum penalty that applies is the same for each of these three orders. The relevant maximum penalty is a fine of $10,000, two years imprisonment, or both.

There is a time limit for bringing a prosecution of an alleged breach of an FVRO, VRO or police order, of two years after the day on which the breach is said to have occurred. This is a strict time limit and there is no exception to the rule to allow prosecutions to be brought out of time.

Being charged with breach of a restraining order places you in a precarious position in terms of remaining on bail while the charge progresses through the courts. Breach of a restraining order is a ‘schedule 2’ offence, so if you are charged with any other serious offence while on bail for breaching a restraining order, including another breach of a restraining order, you will remain in custody until the case concludes unless you can demonstrate exceptional circumstances for release on bail.

If charged with breaching a restraining order, the penalty likely to be imposed depends on a number of factors. These include:

• whether you have any prior convictions for breaching a restraining order;
• your personal circumstances including your age and criminal history;
• the nature of the breach. For example, a breach involving consensual contact with a protected person is considered less serious than one that involves contacting a protected person who does not want to hear from you; &
• whether you plead guilty or not guilty.

It is common for a protected person to assist a bound person to breach a restraining order. For example, by encouraging the bound person to breach the order by contacting the protected person. The protected person does not commit any offence by acting in this manner. However, such conduct may be considered to be a mitigating factor if the protected person without any influence on the part of the bound person, initiated the breach of the order, and at the time of the commission of the offence, no conduct of the bound person constituted family violence.

For minor, first time breaches, a fine may be considered to be appropriate. However if you repeatedly breach a restraining order, you can expect to end up in custody quite quickly serving a term of imprisonment. Despite the fact that maximum penalty is low compared to other criminal offences, the courts take breaches of a restraining order very seriously. Repeated breaches of a restraining order will result in you becoming a ‘third striker’ offender.

What is a ‘third striker’ restraining order offender?

You will become a third striker offender if you:

1. Have committed and been convicted of at least 2 offences of breaching an FVRO, VRO, police order, or an offence of stalking under s 338E Code where a circumstance of aggravation was that you breached an order under the Restraining Orders Act; &
2. Within the period of two years after committing and being convicted of those 2 offences, you are convicted of another offence of the same kind outlined above in paragraph 1.

It does not matter whether the 2 prior convictions:

• were recorded before or after the date of committing the 3rd offence; or
• have already been counted in sentencing for a different 3rd striker offence.

So take the example where you committed two offences of breaching an FVRO on 27 April 2021, and were convicted of these on 27 July 2021 and received fines. If you committed another breach of an FVRO on 28 April 2021 and were convicted of it on 1 January 2022, you would be a 3rd striker FVRO offender.

Importantly, convictions for 2 or more offences committed on the same day are to be treated as a single conviction.

If you are a 3rd striker at the time of sentencing, mandatory sentencing applies. The court must sentence you to a sentence that is or includes imprisonment (or detention if a juvenile), unless:

• imprisonment or detention would be clearly unjust given the circumstances of the offence and the person; and
• the person is unlikely to be a threat to the safety of a person protected or the community generally.

A court that does not impose a penalty that is or includes imprisonment or detention must give written reasons why it was not imposed.

What this means in practical terms is if you are a 3rd striker, you will ordinarily receive either immediate or suspended imprisonment as a penalty, unless it would be ‘clearly unjust’. In determining this the court will focus on the circumstances of the offence and the offender, but there is no guarantee you will receive anything other than a sentence of imprisonment, which is the court’s starting point.

Conclusion

Breaches of an FVRO, VRO or police order can quickly result in the court imposing stiff penalties of immediate or suspended imprisonment. If you repeatedly breach these orders, the court is placed in a position where it must impose such penalties unless you can demonstrate it would be unjust to do so. If you are charged with a breach of a restraining order, don’t hesitate to contact James Jackson Criminal Defence today for expert advice.