DPP v Jeremy Jane [2010] NSWLC 13

Local Court of New South Wales

CITATION: DPP v Jeremy Jane [2010] NSWLC 13

JURISDICTION: Criminal

PARTIES: NSW Director of Public Prosecutions Jeremy Jane

FILE NUMBER:

PLACE OF HEARING: Downing Centre Local Court

DATE OF DECISION: 04/29/2010

MAGISTRATE: Magistrate Heilpern

CATCHWORDS: AVO- Breach of AVO

LEGISLATION CITED: Crimes (Domestic and Personal Violence) Act 2007

CASES CITED: Newcastle City Council v GIO General Ltd (1997) CLR 85 at 113

TEXTS CITED:

REPRESENTATION: Mr Laird for the DPP Mr Grew

ORDERS: Judgment in favour of the DPP.

Reasons for Decision

1 Jeremy Jane (the defendant) is alleged to have breached an Apprehended Violence Order (AVO) on the 18th of March 2009 by assaulting Gay Iloski and causing her grievous bodily harm.

2 There is no issue that the defendant assaulted her and caused her the requisite harm. The only issue is whether the AVO was in force on the 18th of March 2009. The defendant has pleaded guilty to the assault.

Agreed Facts

3 The following facts are agreed by the prosecution and the defence: · During 2008 the defendant and Gay Iloski were in a domestic relationship. · On 9 December 2008 Police on behalf of Gay Iloski obtained a provisional order which was served on the defendant on 10 December 2008 with a return date of 17 December 2008 at Balmain Court. · The served order contained the usual information re listing, including that if "you fail to attend the Court may make orders against you" and "If you fail to comply with any condition of the AVO you may be immediately arrested and charged". · On 17 December 2008 the defendant did not attend Balmain Court, and a Final Order was made in his absence for a period of 12 months, including an order not to assault Gay Iloski. · On 18 March 2009 the defendant assaulted Gay Iloski. · On 27 March 2009 the defendant was arrested for the assault and was also charged with breaching the AVO. He was served with a copy of the 17 December order on the 27 March 2009 and was not served prior to this date. The Legislative Framework 4 The charged offence is under s14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (the Act) which relevantly provides: (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. Maximum penalty: Imprisonment for 2 years or 50 penalty units, or both. (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. 5 The key definitions in the Act are as follows: "apprehended violence order" means: (a) a final apprehended violence order, or (b) an interim apprehended violence order. "interim apprehended domestic violence order" means an interim apprehended domestic violence order made by a court or Registrar under Part 6 or an authorised officer under Part 7. "interim apprehended violence order" means an interim court order or a provisional order. "provisional order" means an interim apprehended domestic violence order or an interim apprehended personal violence order made by an authorised officer under Part 7. 6 In this case there was clearly no interim order, but there was a provisional order. The key provision with respect to the duration of a provisional order is s32 of the Act: