Murray v IA
[2020] ACTSC 288
•12 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Murray v IA |
Citation: | [2020] ACTSC 288 |
Hearing Date: | 12 October 2020 |
DecisionDate: | 12 October 2020 |
Before: | Mossop J |
Decision: | See [46] |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from the Magistrates Court against sentence – assault occasioning actual bodily harm – respondent assaulted her son – magistrate made a non‑conviction order with a good behaviour order – whether the magistrate misapplied the parity principle and doctrine of precedent – she did – whether the sentence was manifestly inadequate – it was not – appeal dismissed |
Legislation Cited: | Crimes Act 1900 (ACT), s 24 Crimes (Sentencing) Act 2005 (ACT), ss 17, 33(1)(za) Spent Convictions Act 2000 (ACT) |
Cases Cited: | Cowie v Gungahlin Veterinary Services Pty Ltd [2016] ACTSC 311 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 ZL v Corey [2020] ACTSC 143 |
Parties: | Andrew Murray (Appellant) IA (Respondent) |
Representation: | Counsel K McCann (Appellant) M Jones (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Kamy Saeedi Law (Respondent) | |
File Number: | SCA 26 of 2020 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Boss Date of Decision: 5 June 2020 Case Title: The Police v IA Court File Number: CC 12727 of 2019 |
MOSSOP J:
Introduction
The respondent pleaded guilty to one count of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT). She had become angry with her 11‑year‑old son and slapped him on the left side of the face, pinched him several times on the upper left arm and punched him in the back with a closed fist. At the sentence hearing on 5 June 2020 the magistrate proceeded by way of s 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT), by making a non-conviction order and imposing a good behaviour order for 12 months.
Grounds of appeal
The grounds of appeal that are set out in the Amended Notice of Appeal are:
(a)Her Honour failed to properly apply the principle of individualised justice;
(b)Her Honour misapplied the parity principle; and
(c)The sentence imposed in relation to the offence is manifestly inadequate.
The appellant did not press ground (a).
Ground (b) was elaborated upon insofar as the appellant contended that, as part of the misapplication of the parity principle, the magistrate had misapplied the doctrine of precedent.
Overview and result
The essential complaint made by the appellant arose out of the manner in which the magistrate dealt with the decision of this court in ZL v Corey [2020] ACTSC 143 (ZL). That case was an appeal from the same magistrate which arose in factually similar circumstances. The Supreme Court had set aside the magistrate’s decision and resentenced the offender by making an order under s 17 of the Crimes (Sentencing) Act, a disposition which did not involve the recording of a conviction.
The appellant contends that the magistrate misapplied the doctrine of precedent by treating the disposition in ZL as being binding upon her, rather than by treating any principle disclosed by the decision in ZL as being binding and taking into account the decision as being relevant to sentencing practice as referred to in s 33(1)(za) of the Crimes (Sentencing) Act. The appellant contends that her Honour took into account what she described as “the principle of parity” as being relevant to the relationship between the outcome in ZL and the sentence to be imposed in the case before her Honour. The appellant contends that this involved a misunderstanding of the principle of parity, which is only relevant to the relationship between the sentences imposed upon one offender and a co-offender.
The appellant also contends that the sentence actually imposed by her Honour was manifestly inadequate.
For the reasons which follow, I consider that the sentencing decision was affected by both of the errors of principle asserted by the appellant. However, I consider that the sentence imposed was not manifestly inadequate. On the contrary, having considered the matter for myself, I consider that the sentence imposed was the appropriate sentence in the circumstances. As a result, the appeal must be dismissed.
The proceedings below
At the sentencing hearing the prosecutor noted that the defendant had no criminal history.
The following documents were tendered:
(a)an amended Statement of Facts;
(b)a psychological assessment report;
(c)a bundle of character reference letters;
(d)Risk Assessment Guidelines (which were not included in the appeal papers); and
(e)a letter from Child and Youth Protection Services dated 8 January 2020.
The solicitor for the defendant then provided her Honour with a copy of the decision of the Supreme Court in ZL.
The solicitor then gave some explanation of the operation of the Risk Assessment Guidelines and the Spent Convictions Act 2000 (ACT), as these were relevant to the consequences for the defendant’s employment of recording a conviction or sentencing the defendant without recording a conviction.
Her Honour then examined the decision in ZL. After examining the decision, the transcript then records:
[HER HONOUR]: Okay, children are clearly not to be protected in this jurisdiction and I know I’ll probably get into trouble for making that remark but I find that absolutely remarkable in the extreme. I don’t know what I’m to do frankly. I can’t protect children in light of that decision. How can I protect a child in this jurisdiction?
MR MAHER: Is that a rhetorical question or---
HER HONOUR: No, it’s a question. How can I protect a child in this jurisdiction after that judgment? My hands are tied. I’m virtually forced into a section 17 in this case. Ms Lucero, what else can I find?
MS LUCERO: You Honour, as your Honour will be aware, is still bound to take into account all the subjectives with this particular case, the submissions that the parties will make and your Honour can make a decision based on all of the evidence. Obviously, a sentence of imprisonment would be a last possible resort but your Honour---
HER HONOUR: I’m virtually bound to a section 17, having read that.
MS LUCERO: In my submission, your Honour is not bound---
HER HONOUR: I feel my hands are completely fettered. A child in this jurisdiction can be assaulted and actual bodily harm can be occasioned to them, and that is still not serious enough to be beyond a section 17, when a parent is at the end of their tether. That’s the ratio of that case. I feel that my hands are tied.
MS LUCERO: In my submission, your Honour is not obligated to make a non-conviction order in all cases involving an assault against a child. However, your Honour needs to take into account all of the factors and considerations before imposing a sentence and if your Honour is---
HER HONOUR: There has to be a course of conduct. Effectively the ratio of that case is there pretty much has to be a course of conduct. A one-off loss of temper is the section 17 territory. It doesn’t really matter that the child has got bruising. With all due respect to her Honour, I wish she would come and sit in the family violence list and with all due respect to her Honour – I wish to grip this – that she hadn’t made a decision in those terms because my hands are effectively tied.
I am of the view that I am no longer in a position to protect children in this territory frankly as a result of that decision. It’s remarkable that a child can be physically injured by a parent even when one understands that parents can be driven – I’m not unmindful of the fact that people can be driven to the end of their tether by children’s behaviour, I fully acknowledge that, but if you’re driven to the end of your tether and in a one-off occasion you injure a child to an extent that you occasion actual bodily harm to them by way of bruising, apparently it’s one where section 17 comes into play and what do I do other than follow that?
I think it’s an amazing situation, absolutely amazing. I’m amazed. I can’t go further than that without being disrespectful and I have no intent or desire to be disrespectful but I find myself in a position whereby as a result of that decision, how can I refuse a section 17?
There was then some discussion of the psychologist’s report. Her Honour indicated that she did not “give it a great deal of weight”. The prosecutor indicated that she had requested that the psychologist be made available for cross‑examination. The transcript then records:
HER HONOUR: As I say, I’m not sure that it’s necessarily going to change anything and as I’ve already indicated, after ZL, I don’t know what I’m supposed to do. If it’s a situation where somebody is at the end of their tether with their child which is what’s happened here, what happened with ZL, if it’s a one-off event with nothing more. If it’s only bruising for heaven’s sake, if it’s only bruising, apparently that is in the realms of section 17 so I don’t know what else I’m supposed to do. I can’t protect a child in this jurisdiction anymore. It’s a matter for you what you want to do.
The psychologist then gave evidence by telephone and was cross-examined.
After the witness withdrew, the transcript then records:
HER HONOUR: Yes, Mr Maher? I really don’t need to hear from you. I’m bound by ZL. I’m bound by principles of parity. Apparently you can hit a child with a shoe and cause them actual bodily harm. In this case, a shoe wasn’t used. It was just a hand so given parity, I would have thought ordinarily pursuant to section 17(3), the seriousness of the offence would have put it outside of section 17 but ZL tells me differently. So I’ll hear from the prosecutor unless there’s anything particularly you wish me to address.
MR MAHER: Well, just very briefly then, your Honour, because I certainly don’t want to be heard against a section 17 decision. It’s clearly what I’m seeking.
HER HONOUR: Well, as I say, ZL---
MR MAHER: It might---
HER HONOUR: What can I do in light of ZL?
MR MAHER: Well---
HER HONOUR: You know, hitting a child with a shoe and causing bruising apparently is not serious enough to put it above section 17. How can I refuse in this case, given the facts of this case and the information before me?
MR MAHER: I’m not arguing against that, your Honour, but what I would say about ZL is that, in my submission at least, [IA] presents to your Honour as [a] “better candidate” if I could put it that way.
Her Honour indicated that she was reluctant to accept the diagnosis of post‑traumatic stress disorder made by the psychologist for the reasons that she articulated. Notwithstanding that, her Honour indicated that the report provided “good background information about the situation that the defendant is in”. Her Honour said:
HER HONOUR: … I agree with you completely that she is in frankly a better position to argue her circumstances than in ZL and yet the outcome in ZL was – as I say, the assault was more serious in ZL. The circumstances of the individual subjective circumstances are frankly more favourable to your client than they were to ZL in my view and I have issues of parity that I am obliged to take into account so.
MR MAHER: Yes and ultimately, your Honour, it’s my submission that when your Honour takes into account all of the factors that your Honour is required to, including sentencing principles. In my submission, the section 17 disposition does meet those. Your Honour may take a different view but---
HER HONOUR: Well, as I said, in light of ZL, I don’t know how I can but anyway, it is what it is. That’s the law.
The solicitor for the defendant then made submissions about the personal circumstances of the defendant in support of a disposition under s 17.
At the commencement of the submissions made on behalf of the prosecution her Honour said: “Yes, Ms Lucero, what on earth can I do in the light of ZL?”. The prosecutor commenced by outlining the offence, the maximum penalty and the circumstances relevant to the assessment of the objective seriousness of the offending. Her Honour interrupted the submissions, saying:
HER HONOUR: Ms Lucero, let’s cut to the chase. In light of ZL, I would ordinarily have found that this matter – or perhaps left to my own devices, I may have found that this was such a serious matter that, you know, slapping, causing bruising to a child was such a serious matter that it would be beyond section 17. All of the other factors in my view are wholly in favour of the defendant. However, I must also apply the principle of parity and in ZL, we have circumstances where the defendant was in perhaps in even less of a significant situation or the objective features in ZL were perhaps less in favour of the defendant and yet, that was found to fall within the bounds of section 17.
MS LUCERO: Yes, but---
HER HONOUR: If I am to apply the principle of parity which I must apply---
MS LUCERO: Well, your Honour, those offences are from – the circumstances from ZL are different. The defendant’s circumstances are different.
The prosecutor and the magistrate then had a discussion involving a comparison between the injuries suffered in ZL and those suffered in the present case. Her Honour then said:
So whereas in ZL, they were nasty bruises that were occasioned by the use – I note that it’s alleged there were two strikes with the shoe. However, my recollection was – I think I found that there were – well, certainly the photographs as I recall them showed – were not entirely consistent in my view with two strikes but in the event, I’m still stuck with parity.
The prosecutor then made some further submissions about the particular injuries and there was then the following exchange:
HER HONOUR: Where is there a departure that – all of the information in ZL, as I’ve already indicated, if you can point out to me where the information in ZL is different – as far as I’ve read the matter, the subjective features of this defendant are more favourable than they were in ZL. The injuries sustained – although there were perhaps two planes rather than I think in ZL there was one plane of injury – but the injury and the use of the shoe as a weapon was a more serious assault. We come back to in light of ZL, how can I fulfil my obligation to address issues of parity? This is the bar that has now been set in relation to children.
MS LUCERO: Yes, but your Honour is obliged to take into account the individual circumstances of this offence---
HER HONOUR: But that’s what I’m saying.
MS LUCERO: ---and also questions of individualised justice.
HER HONOUR: Absolutely but this is the bar that has now been set. If you hit children with a shoe or with your hand and you cause bruising, this is the standard that has been set. This is the level. How can I distinguish this case from ZL?
MS LUCERO: With respect, this – the decision in ZL was a sentence that was reviewed by the ACT Supreme Court and part of the appeal was that – or the grounds of the appeal was that her Honour hadn’t taken into account extenuating circumstances and hadn’t considered other options before imposing a term of imprisonment. However, I would urge your Honour to hear the balance of my submissions with respect to the subjectives in this case in order to impose a just penalty in all the circumstances.
The prosecutor was then permitted to complete the balance of her submissions in which she addressed, in some detail, and by reference to authority, the weight that could be given to the psychologist’s opinion and the extent to which cultural factors relevant to the offending might be appropriately taken into account. The ultimate submission made by the prosecutor, in relation to the decision in ZL, was that while there need not be imprisonment or a conviction in every case, the decision did not preclude the magistrate from imposing a conviction in this case. Her Honour responded:
But then we come back to the question I asked you right at the beginning of your submissions. How can I distinguish ZL from this case in circumstances where the subjective features of this defendant are more favourable than they were in ZL?
The prosecutor made some further submissions as to the relative seriousness of the offending.
Her Honour gave her reasons immediately following the conclusion of the prosecutor’s submissions. Her Honour’s reasons addressed the submission, made on behalf of the defendant, that the matter should proceed pursuant to s 17. Her Honour’s reasons were, quite appropriately, structured by reference to the statutory considerations in s 17(3). She accepted that the defendant was otherwise of good character, that she had no antecedents and that she was in good physical health. Her Honour then addressed the psychologist’s report and indicated that she was unable to give a great deal of weight to the opinion of the psychologist in relation to the diagnoses but accepted that it set out some background information about the defendant. With the benefit of that information her Honour concluded:
Essentially this is a woman I am satisfied was at the end of her tether with the behaviour and simply lost control, as one can understand perhaps, in extreme circumstances.
Her Honour then addressed the circumstances in ZL and quoted from a number of paragraphs of that decision. The reasons then provide:
As I have already indicated to the parties, I am bound by not only issues of precedence but also the principle of parity. It seems to me in all the circumstances that if that offence was not so serious as to place it beyond section [17]. The nature of this offence – albeit there were more discrete bruises but of lesser seriousness, that is the bruises were smaller and issues of redness rather than perhaps the purple bruising that would have indicated arguably heavier blows than seen in ZL – for those reasons, it seems to me I can’t find that this matter is of such seriousness that it places it beyond section 17.
She then gave consideration to whether there were any extenuating circumstances. Her Honour’s reasons concluded as follows:
As I have already indicated, my initial response to matters of abuse of children and physical injury to children would, in my view, almost always put them beyond section 17 because of their seriousness. ZL - I must regulate my approach to that factor in the light of ZL by which I am bound and noting, as I have already indicated on several occasions now, questions of parity, I am of the view that my discretion must properly flow in favour of the defendant. I therefore make a non-conviction order pursuant to section 17. However, rehabilitation also being a highly relevant sentencing consideration that forms part of section 17 considerations, I am of the view that it is appropriate for that non-conviction order to be accompanied by a good behaviour order.
The doctrine of precedent
The doctrine of precedent requires that a lower court be bound by the decisions of a higher court in the hierarchy in which it belongs: Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 at [60]; Viro v The Queen (1978) 141 CLR 88 at 129. The binding effect of a decision is only in relation to the ratio decidendi of that decision.
In relation to sentencing decisions, the relevance of past sentences to discretionary sentencing decisions is a matter of legislative prescription. The Crimes (Sentencing) Act provides that, in deciding how an offender should be sentenced for an offence, a court must consider “current sentencing practice”: s 33(1)(za). Considering past sentences is also relevant to the achievement of reasonable consistency in sentencing: Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong) at [6]. However, sentencing involves a discretionary judgment and the mix of factors that must be weighed in determining an appropriate sentence will never be precisely the same from one case to another: R v Pham [2015] HCA 39; 256 CLR 550 (Pham) at [46]. Consistency does not mean numerical equivalence but, rather, the consistent application of relevant legal principles: Wong at [6], [65]; Hili v The Queen [2010] HCA 45; 242 CLR 520 at [49]; Pham at [28].
It is a statement of elementary principle that a sentence itself gives rise to no binding precedent. In Wong the plurality said at [57]-[58]:
57. The actual sentence which a court imposes on an offender reveals very little about the reasons which the court had for fixing that sentence. Contrary to submissions made on behalf of the Attorney‑General of the Commonwealth (intervening in support of the respondent) the sentence itself gives rise to no binding precedent. What may give rise to precedent is a statement of principles which affect how the sentencing discretion should be exercised, either generally or in particular kinds of case. It is, therefore, fundamentally wrong to speak of "quantitative aspects" of discretionary decisions
58. So much is, or should be seen as, no more than a statement of elementary principle.
(Footnotes omitted)
In Pham at [29] the court said, with reference to the decisions in Wong at [57] and LaceyvAttorney-General (Qld) [2011] HCA 10; 242 CLR 573 at [55] : “It is also settled that a “sentence itself gives rise to no binding precedent””.
Parity
The principle of parity is the principle that offenders who are party to the same offending should not be sentenced in a way which is so different so as to create a justifiable sense of grievance on the part of the offender receiving the heavier sentence or give the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606. Where there are substantial differences in the subjective circumstances of such offenders, or their role in the offending, then the sentences imposed should reflect that difference. The rationale for the principle is that of equal justice: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green) at [28]. The principle “acknowledges the need for consistency in punishment while recognising that sentencing is individualised and offenders present with different subjective circumstances that must be taken into account”: R v Nicholas; R v Palmer [2019] ACTCA 36 at [99]. The principle only applies to offenders charged as parties to the same crime or charged with different offences arising out of the same criminal activity: Green at [29]-[30].
Consideration
The decision in ZL involved two things: a decision that there was a House v The King error in relation to a sentencing decision and a resentencing. The court found that a suspended sentence of imprisonment was, in the circumstances, manifestly excessive: [82]. The court then proceeded to resentence and ultimately made a non-conviction order.
In the present case, it was clearly necessary to take that decision into account under s 33(1)(za), insofar as it formed part of a pattern of sentencing for the offence of assault occasioning actual bodily harm. It illustrated, but did not define, the possible range of sentences available.
As I have previously indicated, care must be taken not to scrutinise the extemporaneous reasons given by a magistrate with an eye keenly attuned to the detection of error: LM v Childrens Court of the ACT [2014] ACTSC 26 at [42]; Cowie v Gungahlin Veterinary Services Pty Ltd [2016] ACTSC 311 at [101]; Williams v Connor [2019] ACTSC 184 at [43]. Further, exchanges during the course of submissions would generally not be taken as necessarily reflecting the concluded views of a magistrate unless the substance of what was said is incorporated into the reasons ultimately given. It is part of the proper function of the making of submissions that there be an exchange of ideas and testing of propositions by a judicial officer that may involve statements being made, as the officer thinks through and tests the submissions being made, that do not reflect the ultimate position reached. Therefore, great caution must be applied to any submission by a judicial officer on appeal, which is reliant upon views stated during the course of argument, which may not be reflected in the reasons ultimately given.
In this case what was said in relation to the issue of precedent and parity was picked up, in part, in the reasons that her Honour gave where she said “As I have already indicated to the parties, I am bound by not only issues of precedence [sic] but also the principle of parity”. It is significant that her Honour, in her reasons, made specific reference to what she had said during the course of argument to the parties about those issues. Consistently with what she said in her reasons, a review of the whole of the transcript indicates that the magistrate’s consideration of the decision in ZL was of fundamental importance to her ultimate approach to sentencing.
In my view, her Honour erred in approaching the matter on the basis that the sentence in ZL was a binding precedent which needed to be distinguished on the facts in order to permit her to impose a different sentence. For the reasons given earlier, it was not a binding precedent. Rather, it involved an exercise of the sentencing discretion in particular circumstances. The magistrate was obliged to take ZL into account as reflecting the pattern of sentencing in a comparable case. However, the magistrate was nevertheless empowered to exercise her discretion and that discretion may or may not have resulted in an order under s 17.
Similarly, I consider that her Honour wrongly took into account what she described as the principle of parity arising from the decision in ZL because that is a principle which had no application in the circumstances of this case. That is because the principle of parity only has application where there are co-offenders and does not have application as between unrelated offenders being sentenced for comparable offending. Counsel for the respondent conceded that the reference to parity in the transcript was incorrect. She submitted that her Honour was, in reality, expressing the principle of precedent rather than parity. Having regard to the way in which the word parity was used throughout the transcript, I do not accept this submission. I do not accept the submission that her Honour was simply referring to ZL as a statement of principles to be applied.
I do not consider that the references to precedent and to the principle of parity involved minor infelicities of language. Had they been such then I would not have been satisfied that there was any error on the part of the magistrate. However, the passages from the transcript quoted earlier demonstrate in my view that the issues were fundamental to the approach that her Honour took and reflect errors of principle in the approach to the exercise of discretion. It is in the light of those errors that the extemporaneous reasons given by the magistrate in relation to the operation of s 17 must be read.
I do not accept the submission made by the respondent that ZL was relied upon simply as authority for the principles that:
(a)cases of physical abuse or injury to children were not of their nature too serious for the operation of s 17; and
(b)that the availability of s 17 was not precluded because there can never be extenuating circumstances in relation to such offending.
Had the magistrate simply discerned these principles from the discretionary decision in ZL, then her Honour would not have been in error, at least insofar as those principles arose by negative implication from the outcome in that case. However, for the reasons that I have given, in light of a review of the whole of the transcript, I do not consider that her Honour’s reasons can be read in this way. I accept, however, the respondent’s submission that once the magistrate turned to consider the application of s 17, she did give careful consideration to the factors referred to in s 17(3) in the particular circumstances of the respondent’s case. However, that fact is not sufficient to avoid the errors of principle that I have identified.
For these reasons, I am satisfied that the appellant has established that the magistrate misapplied the parity principle and misapplied the doctrine of precedent. In doing so, her Honour’s exercise of discretion was affected by an error of principle and that is a House v The King error. Her Honour therefore was “otherwise in error” for the purposes of s 219D(e) of the Magistrates Court Act 1930 (ACT).
The sentence imposed was correct
In the circumstances of this case it is not necessary to go on to consider the remaining ground of appeal, namely, that the sentence was manifestly inadequate, or to consider the respondent’s submissions in relation to the exercise of the residual discretion to decline to intervene. The reason for that is that, having considered the sentence imposed, I am positively satisfied, in the independent exercise of my discretion, the sentence imposed by the magistrate was the correct one: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35], [43]. Therefore, the position is that, notwithstanding the error of principle relating to the exercise of the sentencing discretion, the sentence imposed was not manifestly inadequate but instead was the appropriate sentence to impose.
The relevant circumstances included:
(a)The respondent was otherwise of good character.
(b)Child and Youth Protection Services had no concerns about her child, having examined the situation.
(c)She had no criminal history.
(d)She was “reasonably mature in age”, having been born in 1981.
(e)She was in good physical health.
(f)She had come to Australia with her son two years prior to the offending.
(g)She received no support from the father of her son. She had been married to her husband for three and half years at the time of the sentencing hearing.
(h)The respondent and her husband’s house had been burnt down in May 2019. She had been essentially homeless for five weeks following that and then living in short term accommodation for a number of months. At one point her family had a home to move to, but that house had flooded.
(i)Her child had been misbehaving at school since August 2019. She had participated in meetings at the school and with the school psychologist in relation to his behaviour.
(j)He had been suspended from school in October 2019 for strangling another child. On two other occasions he had to be picked up from school early because of his behaviour. The respondent and her husband had been called to the school on a number of occasions.
(k)He was suspended again in November 2019. His behaviour was a significant stressor for the respondent. She and her husband had spoken to him on a number of occasions and tried to reason with him but were feeling very desperate about his behaviour. After the offending he moved schools and his behaviour had greatly improved.
(l)The respondent was employed in the childcare sector and obtained a positive reference from her employer which recorded her as being “a very dedicated and respectful Educator” being of “a gentle nature and … always energetic and willing to contribute to all daily routines”.
(m)A caseworker appointed following the incident described the respondent as being “a humble, respectful, transparent and nurturing person who takes great pride in who she is as a person, mother, wife and within her home”.
(n)She had pursued qualifications relevant to that employment, being a Certificate 3 in Early Childhood and Education, notwithstanding that English was her second language.
(o)Her employment in the childcare industry requires that she has a Working with Vulnerable People Card. The recording of a conviction would be likely to have a more significant and longer term effect on her capacity to obtain a Working with Vulnerable People Card and hence have a greater effect on her capacity to obtain employment.
(p)Following the offending she had received counselling from a counsellor and undertaken a substantial course in relation to parenting skills. She received a positive report from both the counsellor and the instructor at the parenting skills course.
(q)Her husband owns a small business which was affected by the COVID-19 pandemic, a fact which made the family more reliant upon her income.
(r)Following the offending she spent two days and one night in custody before being granted bail. When granted bail she was also subject to restrictive bail conditions which prevented contact with her son except in certain circumstances.
(s)She had pleaded guilty prior to the matter been set down for hearing.
Clearly the offence had a degree of seriousness as it involved actual bodily harm. The offence carries a significant maximum penalty. Children are entitled to protection from that kind of offending. However, the matters outlined above, which may be taken into account under s 17(3)(a) and (c) and s 17(4), are more than sufficient to warrant the satisfaction of the purposes of sentencing by the making of a non-conviction order in the present case.
Orders
Because I am satisfied that the decision of the Magistrates Court should be confirmed, I will dismiss the appeal under s 219F(1)(a). It is not necessary to consider whether this is done through the immediate application of s 219F(1)(a) or whether it needs to go through via s 219F(5). In either case the outcome is the same, namely, that the appeal must be dismissed. The statute requires that the appellant pay the respondent’s “costs of and incidental to” the appeal: s 219F(8).
The orders of the Court are:
1. The appeal is dismissed.
2. The appellant is to pay the respondent’s costs of and incidental to the appeal.
3. Liberty to apply in relation to any issue relating to the quantification of costs payable under order 2.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 21 October 2020 |
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