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1. This matter concerned a supervised contact visit at a park in June 2022 between a mother and her child, who was seven at the time and had been removed from his mother’s care. There was a history of distress for the mother and fraught relations with those responsible for the child, including facilitating access.

Overview of proceeding in the Magistrates Court

2. With that background, the appellant attended the park for a contact visit with her son, which was being supervised by the victim, with a second caseworker present. The victim had formed the view that the visit should end. This caused an altercation between the appellant and the victim that resulted in the appellant striking the victim in the face. The victim suffered a cut, bruising and swelling from the strike.

3. The appellant was charged with two offences. She was found guilty of one offence of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) (CAN 9388/2022) and sentenced on 15 April 2024 to six months’ imprisonment, fully suspended upon her entering into a good behaviour order for a period of two years. The appellant has appealed against both her conviction and her sentence.

The court’s power and task on appeal

4. The appellant was self-represented and raised a number of matters concerning the history of her involvement with what is now known as Children, Youth and Families in the ACT (known as Child and Youth Protection Services at the time of the events). Following the hearing, further submissions were received from the appellant over a number of months which expanded upon both the subject matter of her appeal and those extraneous matters. In those circumstances, an explanation of the limits of the court’s power on an appeal is appropriate.

5. On an appeal, the power the court is exercising is limited to the criminal offences that were the subject of trial in the Magistrates Court. The process is a statutory one, governed by ss 207, 208 and 214 of the Magistrates Court Act 1930 (ACT) (MC Act). As explained in Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 at [13]-[22], the Supreme Court rehears the matter, independently reviewing the evidence given at first instance and the judge’s reasons for judgment. The court respects any advantage that the primary judge enjoyed but forms its own conclusion and gives effect to that conclusion: Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551, reinforced by the High Court in Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56].

6. If error is established, the court’s power to intervene is governed by s 218(1) of the MC Act, which permits the court, among other things, to either confirm or set aside the conviction or give the judgment that in all the circumstances it considers appropriate: ss 218(1)(a) and 218(1)(b) of the MC Act. The order then has effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly: s 218(2) of the MC Act.

7. Importantly though, such a rehearing is not the same as dealing with the matter afresh. One of the choices made by the appellant was not to give evidence in the Magistrates Court. The appellant was legally represented in the Magistrates Court and there was no complaint about that representation. In submissions provided after the hearing of the appeal, the appellant indicated that she had changed her mind about that choice. However, the appeal process is an opportunity to correct material error, whether that error be of a legal, factual or discretionary kind. It is not directed to facilitating a fresh trial where different forensic choices might be made.

8. The Court does have the power to receive evidence and one of the circumstances in which it can do so is with the consent of the parties: s 214(3)(b) of the MC Act. Evidence from the appellant’s father (who did not give evidence at the original trial) was provisionally admitted with the respondent’s consent because it was unclear what the appellant’s arguments were from the notice of appeal and whether what was being sought was material to the conviction or sentence aspect of the appeal, or both.

9. Having considered the evidence with knowledge of the issues discussed below, the additional evidence largely expanded upon matters that were already before the Magistrates Court. The receipt of that additional evidence did not establish error in respect of either the conviction or the sentence.

Issues on appeal

10. The notice of appeal filed on 10 May 2024 simply referred to the appeal based on an “error of law” without further particulars and sought that the conviction be set aside and, in essence, that the appellant be acquitted of the charge instead. The key issue articulated by the appellant during the hearing was that she did not consider the Magistrate gave proper weight to “her evidence”, being a reference to the record of interview with the police.

11. If the appeal against conviction was unsuccessful, the alternative relief sought by the appellant on sentence was that the court dismiss the matter upon conviction. She considered that the conduct did not warrant any punishment, due to her subjective circumstances.

12. There was also a preliminary issue as to competency of the appeal, raised by the respondent. This will be addressed first.

The prosecution’s application to strike out the conviction appeal

13. The respondent applied to strike out the appeal against conviction pursuant to r 5172 of the Court Procedures Rules 2006 (ACT) (Rules), which includes a provision that the burden of establishing the competency of the appeal is on the appellant.

14. The respondent argued that the appeal was incompetent because the appellant had previously discontinued an appeal against the same finding of guilt. Where an appellant discontinues an appeal (whether civil or criminal), “the appeal or part of the appeal is abandoned by the appellant”: r 5171(5)(a).

15. The prosecution argued that leave was required to commence an appeal after a discontinuance, relying on authorities in other jurisdictions, including Tognolini v R (no 2) [2012] VSCA 311 at [11]-[21] and R v Bell [2002] NSWCCA 2 at [29]-[33].

16. In the event that leave was required, the appellant sought leave at the hearing.

17. I was not convinced that, in the circumstances of this case, leave was required or that the appeal was incompetent. What occurred was that the appellant sought to appeal the conviction prior to sentence without the benefit of legal advice. When she had received that advice, she withdrew that appeal, was sentenced, and then appealed both the conviction and the sentence within the 28-day time limit stipulated in s 209 of the MC Act.

18. The cases relied upon by the respondent dealt with different procedural regimes in different jurisdictions. At the relevant time in Victoria (and as confirmed in Tognolini (no 2) at [12]), the filing of a notice of abandonment had the effect that the appeal was taken to be dismissed: r 2.41 of the Supreme Court (Criminal Procedure) Rules 2008 (Vic). The dismissal thus operated as a bar to a future proceeding, absent leave of the court in that jurisdiction.

19. A rule to similar effect applies in New South Wales, being r 27 of the Criminal Appeal Rules 1952 (NSW), which was referred to in Bell at [29]. There, the Court of Criminal Appeal (Smart AJ with Handley JA and O’Keefe J agreeing) discussed the court’s inherent jurisdiction to remedy injustice in those circumstances and discussed a test of whether there would be a miscarriage of justice.

20. In the Territory, where there is no equivalent procedural rule, the position is that a discontinuance of a proceeding does not necessarily operate as a bar to further proceedings: The Owners of the Cargo of the Kronprinz v The Owners of the Kronprinz (The Kronprinz and The Ardandhu) (1887) LR 12 App Cas 256 (at 259, 262), followed in Eastman v Chief Executive Officer of the Department of Justice and Community Safety (No 2) [2010] ACTSC 13 at [7]. That point was similarly made by Burns J in Davidson v R [2012] ACTCA 1 at [8].

21. The respondent relied on common law principles concerning abandonment of appeals as governing the court’s jurisdiction here. I would simply observe that the court’s jurisdiction for criminal appeals in the Territory derives from statute and care is required before transposing common law principles regarding abandonment deriving from the English authorities. The Federal Court of Australia made that very distinction in Chen v Monash University [2016] FCAFC 66; 244 FCR 424 at [40]-[44], expressly distancing itself from applying principles of inherent jurisdiction by reference to English precedent drawn from common law courts. However, the Federal Court did find an implied power existed to reinstate an appeal as an incident of protecting abuse of its processes.

22. For completeness, there may be other reasons why a discontinuance prevents a party from recommencing the same proceedings. Examples in a civil context include cases such as UBS AG v Thyne [2018] HCA 45; 265 CLR 77 at [56]-[59] and Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [9]. However, this appeal did not involve those kinds of circumstances.

23. Here, the appellant discontinued her appeal from the Magistrates Court in a criminal proceeding, with the consent of the Director of Public Prosecutions pursuant to r 5171(2) of the Rules. There was affidavit evidence from the Director that such consent was obtained unconditionally on 19 March 2024. As the authorities stand in this jurisdiction, the discontinuance did not create a bar to future proceedings.

24. Further, from the perspective of the efficient administration of justice, there are sound policy reasons to encourage delaying any conviction appeal until after sentence in the Magistrates Court. A proceeding in the Magistrates Court is immediately stayed upon any appeal being lodged (s 216(1) of the MC Act), meaning that the appellant could not have been sentenced without first withdrawing her appeal. The bifurcated process of permitting a conviction appeal to be heard separately from a sentence appeal is not desirable because it means that judicial and prosecution resources are expended on the one matter twice. This will not be the first case, nor the last, where an appellant has filed an appeal against conviction before taking legal advice and then withdrawn it to allow the sentencing process to take place before appealing again. It would be regrettable if every time that occurred, an application for leave was required. It might potentially also lead to appeals remaining in the lists and adjourned pending sentence, rather than withdrawn. I have found no support for that outcome in r 5171 and I reject the respondent’s submissions that leave was required in the circumstances that arose here.

Leave to appeal granted for abundant caution

25. To guard against the prospect that a different view might be taken by others as to the legal effect of filing a notice of discontinuance, I granted leave to appeal the conviction appeal during the hearing to the extent necessary broadly for reasons of efficiency and lack of prejudice. That is: (a) there was an obvious explanation for the initial discontinuance, being that the appeal before sentence appeared to have been without the benefit of legal advice; (b) the appeal against sentence was not incompetent and that aspect of the appeal was proceeding regardless; and (c) the parties were in a position to argue not just the question of leave, but the entirety of the substantive appeal, including the complaint against conviction, and that aspect of the appeal was itself confined due to the facts of the case.

The appeal against conviction

26. On the conviction appeal, the appellant’s challenge was directed to the Magistrate’s ultimate factual finding that she assaulted the complainant. From the submissions made during the hearing, I have taken the appellant’s complaint to be in substance that the Magistrate should have entertained a reasonable doubt about whether the conduct occurred in the way the complainant said, and whether the appellant was acting in self-defence.

27. The applicable principles for this type of ground of appeal were discussed in Marshall v The King [2023] ACTCA 11 at [145]-[146], applying M v The Queen [1994] HCA 63; 181 CLR 487 at 492-3, 494-5. The question is whether an independent examination of the evidence establishes that it was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt and requires the court to consider whether the jury must, as opposed to might, have entertained a reasonable doubt as to the accused’s guilt: Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]. This is to be distinguished from the legal question of whether, taken at its highest, the evidence can support the verdict. It is a question of fact: see Garay v The Queen (No 3) [2023] ACTCA 2 at [14].

28. As the appellant made submissions about the lack of weight given to her evidence, it is relevant to explain that in considering whether the finding of guilt was open, it is not enough to examine a complainant’s account and determine whether it enabled a factfinder to accept it. What is required is an “independent assessment” or weighing of the competing evidence, to determine whether the verdict of guilt was unreasonable or could not be supported: SKA v The Queen [2011] HCA 13; 243 CLR 400 at [24]; M v The Queen at 492.

29. Here the factfinder was a magistrate, not a jury. As discussed in Garay at [27], the question is the same whether the appeal follows a trial by a judge or by a jury (citing Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [11]-[12]), but the approach might be different, in that on appellate review, it might be appropriate to adopt unchallenged intermediate findings of fact of the trial judge, without the need for independent assessment.

30. The parties should identify the evidence that each says supports their respective cases, for the appellate court to then review and assess: The King v ZT [2025] HCA 9; 281 CLR 137 at [11]. A summary of that evidence follows. It has been drawn from the features relied upon by the parties in their oral and written submissions.

Summary of Evidence

Complainant’s account

31. The Complainant’s evidence was that she was employed as a foster care case manager, working with OzChild, an organisation contracted to Child and Youth Protection Services (CYPS) in the ACT. The appellant’s child was in the care of CYPS, and the complainant had been the child’s case manager since November 2020. The complainant had been present for a supervised visit between the appellant and the child once before.

32. On 9 June 2022, at about 2.30pm the appellant met the complainant and the child at a park for a supervised visit. Due to safety planning, a second case manager attended the supervised visit. The complainant arrived with the child and the second case manager arrived in a separate vehicle.

33. The complainant’s evidence was that she encouraged the child to engage with the appellant. The appellant told the complainant to stay out of her contact visit and asked the complainant to stand with the second case manager. The complainant said that she was happy to keep her distance, but she had to remain within visual sight and in hearing range. The appellant yelled at the complainant that the child was not dressed appropriately for the weather and later said in what the complainant described as an aggressive manner, “He can’t read”.

34. After some time playing on the playground equipment, the child went over to the complainant and gave her a hug. This upset the appellant. She grabbed the child by the forearms and said to him in a loud tone, “Nobody is allowed to touch you. If anybody touches you, I’m going to call the cops.”

35. The appellant then asked the complainant to repeat that message to the child. The complainant responded that it was ultimately up to the child to choose physical contact. The appellant was upset by this answer and pulled her child by the wrist towards the park bench. The complainant saw that the child shut down partway through the interaction. She followed the appellant and the child. She asked the child whether he would like to end the visit and he said yes.

36. The complainant then requested the appellant to let go of the child’s arm. The appellant refused and said she would take him to the car. The complainant again requested the appellant to let go of the child’s arm and received the same response. The complainant then grabbed the child by the elbow or forearm and pulled his arm out of the appellant’s grasp.

37. She denied grabbing the appellant at the same time, denied stepping on the appellant’s foot at that time and denied that the appellant had asked her several times to let her go.

38. The appellant grabbed the complainant’s facemask and glasses off her face and the complainant “kind of pulled back”. As she pulled back, she closed her eyes and felt pain on her left cheek. She realised the appellant had hit her on the left side of her face, causing her to stumble back from the shock. When the complainant re-opened her eyes, she noticed her glasses and mask were on the ground. The left glasses frame was broken, and the lenses had come out.

39. The complainant denied that the appellant had pushed her away when the complainant stepped on her foot and denied that she gripped the appellant’s armpit. The complainant stated that she did not feel anything across her body, only pain to her left cheek.

40. The second case worker came over and stood between the complainant and the appellant who was yelling. He tried to calm the appellant down. The appellant yelled at the complainant for approximately two minutes.

41. The complainant grabbed her glasses and mask and took the child to her car. The appellant left with a male (who was her fiancé) shortly afterwards. The complainant’s face was swollen, and her left eye was watering heavily.

42. The second case worker drove the complainant and the child from the park. The complainant sought medical attention on 9 and 10 June 2022. The medical notes recorded that she suffered a bruised left lower eyelid and left cheekbone area.

43. The complainant accepted that there were issues between the appellant, CYPS and ACT Together, the latter being the former consortium of which Ozchild was a part. She maintained that in the past two years, her relationship with the appellant had been positive and they had met in the community several times with no issues. The first face-to-face visit that she had participated in had gone well and she was not worried or anxious about the visit.

The second case worker’s account

44. The second case worker’s evidence was that he was present when the incident occurred and he broadly corroborated the complainant’s account: (a) In respect of the lead up to the incident, he referred to the appellant using a high-pitched voice when yelling at the complainant about the child being inappropriately dressed and that he had observed the appellant becoming “a bit frustrated” when the complainant asked how it was going and again when the child gave the complainant a hug. (b) In respect of incident itself, he was standing two metres from the group. He saw the appellant pull the complainant’s glasses and mask off and then punch the complainant twice to the left side of her face. He had nothing obstructing his view. He ran over as soon as he observed this conduct to intervene and stop the appellant’s conduct. (c) He denied seeing the complainant step on the appellant’s foot or that she grabbed the appellant. He denied seeing both women with a hold of the child at the same time prior to the punch. He said that the appellant used her fist to strike the complainant first.

The account from the appellant’s fiancé

45. The appellant and her fiancé have been together for four years (at the time of the hearing). He attended the supervised contact but stayed in the car. He initially believed the car was parked 8-10 metres away from the appellant but later estimated this to be 10-15 metres away. He could see the whole car park and 80 percent of the park from where he was sitting.

46. He remembered being on his phone and looking elsewhere until his eye was drawn to the altercation, which took place to the right of his car. He recalled seeing the complainant holding the appellant’s jumper towards the breast area and he saw that one of the complainant’s feet was on the appellant’s foot. At that point he saw both women “going backwards and forwards” in a struggle. He saw the appellant push the complainant with her forearm, like a shove, contacting with the complainant’s face, between the nose and the top of the complainant’s forehead. The force used was enough force to push someone away.

47. He got out of the car and ran to the footpath where the two women were and grabbed hold of the appellant. The second caseworker had already got to the appellant and the complainant about 15 to 20 seconds before he did. He saw the second caseworker say something to the complainant. By the time the fiancé arrived, the second caseworker had gone back to the toilets and grabbed the child’s bike which was hidden behind the back of the toilets and taken it back to the car.

The record of police interview with the appellant

48. The respondent tendered the police interview undertaken with the appellant on 18 August 2022. Only the audio and transcript of the interview was before the court on appeal. Following a discussion with the parties during the hearing as to the legal principles applying to viewing witnesses on appeal where not all the visual footage of witnesses was available, I formed the view that it was not appropriate to view the video of the recording of interview with the appellant.

49. The appellant stated to police that she acted in self-defence and that the complainant had abused her first. She said that the complainant was overwhelming her in the visit, trying to get the child’s attention just on her and not on the appellant. The appellant stated that the appellant had wanted to end the visit and started walking the child to the car when the complainant came over and stepped on her right foot to stop her from walking, grabbed the child’s hand and grabbed her on the breast and arm. The complainant asked the child what he wanted to do. The appellant said that she requested the complainant to “please get off me” about five times at least and she ultimately pushed the complainant off her. She accepted that she pushed the complainant in the face and that the complainant’s glasses fell off. The appellant accepted that she pushed to get the complainant away from her.

50. The appellant stated that the complainant had been trying for years to get the child’s attention, that she hated the complainant, that the complainant did not have a mask on, that the complainant was lying about the appellant punching her and that the complainant probably did the injury to herself to make the appellant look bad, and that she was sick of her. The appellant also stated that at some point during the supervised contact, the complainant had asked to cuddle the child and that she had told her to stop touching the child.

The reasons of the Magistrates Court

51. The magistrate delivered reasons the day after the evidence and submissions had concluded. The magistrate directed himself as to the standard and burden of proof in a criminal trial.

52. The magistrate referred to the onus on the prosecution to satisfy the court beyond reasonable doubt that the actions of the defendant in applying force to the complainant’s face were not done in self-defence.

53. The magistrate referred to the elements of the assault occasioning actual bodily harm under s 24(1) of the Crimes Act, being that force was applied to the complainant, and that the application of force occasioned actual bodily harm. The magistrate dealt with whether the application of force was without lawful excuse (that is, whether the force was applied in self-defence) separately after dealing with other directions about how to treat the evidence of the witnesses, which were not the subject of any complaint on this appeal.

54. The magistrate referred to the interview between the appellant and the police which was received in evidence. He stated that he did give it some weight, and he indicated that there were aspects of the interview that he did accept.

55. The magistrate accepted that: (a) the removal of the child from the appellant’s care had caused a great distress to her; (b) she was distrustful of CYPS; and (c) she was sceptical of the standard of care that the child and her other child was receiving in care.

56. The magistrate further accepted that in the mind of the appellant, the complainant was monopolising the child’s attention.

57. The magistrate then set out portions of the complainant’s evidence (which have already been summarised above) and indicated that he accepted the complainant’s evidence. That is, the magistrate accepted the complainant’s account as to how the force came to be applied to her face.

58. The magistrate also accepted that the photos, medical records and observations of the police and complainant, established bruising to the complainant’s face on the left side and a mark to the side and bridge of her nose that may have been referrable to force being applied to the glasses and the frame that were sitting on her face immediately before the blow was struck.

59. The magistrate then referred to the second caseworker’s evidence and accepted that there were a number of blows struck at the complainant.

60. The magistrate dealt with the appellant’s interview with the police, extracting parts of the interview before stating: It is my recollection from watching the CCTV at that stage that she demonstrated that on that occasion and otherwise that she pushed her right forearm towards [the complainant’s] face and made contact with her face around the cheek area. It is an account that I simply do not accept. The reasons for that are that there was a degree of improbability involved in her account of what occurred and it struck me that the account that she gave was very much a contrivance. It did not contain the ring of truth and seemed to be an [artifice] designed to explain what she admitted was the application by her of force to [the complainant’s] face.

61. The magistrate then dealt with the issue of self-defence, as follows: The Zecevic formulation, which was discussed with counsel in [submissions], is a straightforward test but its application depends on proof of facts that would allow the defence to operate. If it were the case that I was accepting of the account given by [the appellant] in relation to the contact with [the complainant’s] face it may be that an issue of self-defence arises. But as I have found, the facts, as I have found them, do not permit that defence, as it is called, to have operation in this case. I find that the version of events given by [the complainant and the second caseworker] are simply inconsistent with a claim of self-defence. Even if I am wrong in relation to the construction of those facts, I would find that the version of events given by the defendant, even on that basis, that the blow towards [the complainant’s] face was done in anger not in prosecution of an act of self-defence.

62. The reference to Zecevic was a reference to a passage which the magistrate had discussed with the parties as to the applicable test for self-defence from Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645 per Wilson, Dawson and Toohey JJ at [16]: …The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application and is not limited to cases of homicide. …

63. The magistrate then addressed the evidence of the appellant’s fiancé, finding that it was stilted and had the impression of the evidence being learned rote. The magistrate explained that the witness was in a car some distance away, concentrating on his phone and that it was not clear that he saw all of the event. Although he reacted and went to the incident, the magistrate’s impression was that the appellant’s fiancé was running to the event to break up what was happening, so far as things being done by his partner was concerned, rather than interfering or intervening in a scuffle between the complainant and the appellant. The magistrate rejected the evidence as not at all compelling.

64. The magistrate then proceeded to record his conclusions, which included finding the offence of assault occasioning actual bodily harm proven.

No error is established in respect of the conviction

65. The elements of the offence of an assault occasioning actual bodily harm are: (a) the person deliberately applied force to another person; (b) the application of force was without lawful excuse; and (c) the application of force caused actual bodily harm.

66. The key question in the Magistrate’s Court and on this appeal centred around the second element, but the other two will be considered briefly first.

The deliberate application of force

67. In respect of the first element, having independently reviewed the material, there was no error in the magistrate’s finding or reasoning that the appellant deliberately applied force to the complainant. The complainant’s account of feeling the force to her face was credible, the application of force was seen by an independent witness and the appellant herself admitted in the record of interview that she had applied force to the complainant’s face. There was a discrepancy about the movement leading up to the application of force to the complainant’s body and whether the appellant’s conduct was a punch or some other movement, but the element itself was established beyond reasonable doubt on any version of events.

The force occasioned actual bodily harm

68. Similarly, that the application of force caused actual bodily harm was also established beyond reasonable doubt on the evidence before the magistrate.

69. At common law, the definition of actual bodily harm was set out in R v Donovan [1934] 2 KB 498 at 509 as being: …any hurt or injury calculated to interfere with the health or comfort of the victim. Such hurt or injury need not be permanent but must be more than transient or trifling.

70. It has been said that bruising may constitute actual bodily harm, although clearly it must be of some significance: R v Ball [2013] NSWCCA 126 at [67].

71. The complainant’s evidence, the photographs, the clinical record and the police officer’s observation of the complainant, all established bruising and swelling to the complainant’s face consistent with the force that had been applied by the appellant which was of the requisite significance to constitute actual bodily harm. Just focussing on the element itself, the harm to the complainant’s face occasioned by the force applied by the appellant was established by that evidence beyond reasonable doubt and there was no error in the Magistrate so finding.

72. In making that finding, it should be acknowledged that there was a discrepancy in the evidence concerning the side of the face that was injured, arising from the visual images, which appeared to show the injury on the other side of the complainant’s face from that which the complainant and other witnesses described. However, the Magistrate accepted the explanation for that inconsistency (relating to how the images were taken on a particular phone) and it does not fall into the category of evidence that must have caused the fact-finder to entertain a reasonable doubt about the guilt of the appellant, because whether the harm was to the left or right side of the complainant’s face, it was nevertheless actual bodily harm of a significant nature.

Self-defence did not arise or was negatived beyond reasonable doubt

73. The remaining element for consideration is whether any error was established in the magistrate’s findings that self-defence did not arise.

74. As a starting point for this element, the law recognises the right of a person to act in self-defence against an attack, or the threat of an attack, by another person. This right arises when a person reasonably believes that the use of force is necessary in order to defend herself (in this case) against an attack, or the threat of one, by another person.

75. From reading the reasons as a whole, it is apparent that the magistrate recognised the appellant did not need to prove that she acted in self-defence and that it was for the prosecution to negative self-defence beyond reasonable doubt.

76. The difficulty for the appellant was that the appellant’s version of events – that the complainant had stepped on her foot which was infected and that this is what caused the appellant to react in the way she did – was rejected by the magistrate. That is, although the magistrate accepted other aspects of the appellant’s record of interview, he did not accept that the appellant’s account of what occurred immediately prior to her pushing her right forearm to make contact with the complainant’s face. He instead considered that to be a contrivance. The magistrate stated that the appellant’s account was an artifice designed to explain the appellant’s conduct.

77. That finding was not a question of the magistrate not giving sufficient weight to the appellant’s account to the police. It was more a matter of the magistrate not believing that account.

78. On an independent review of the evidence, it was open to the magistrate to reject the appellant’s explanation to the police as to how it came about that she made contact with the complainant’s face. The Magistrates Court did have a relevant advantage in seeing the appellant’s record of interview (extracted at [60] of these reasons) and respect is given here to that feature of the magistrate’s reasoning. There was no discernible error in that finding.

79. The consequence is that there was no factual finding warranting consideration of whether there was a lawful excuse of self-defence.

80. For completeness though, the magistrate did make an alternative finding, which was that even if he was wrong about those facts, he would have found that the contact with the complainant’s face was an act done in anger, not in a belief that that it was necessary to do what she did in self-defence. To put that another way, the magistrate was satisfied beyond reasonable doubt that the appellant did not genuinely believe that she needed make contact with the complainant’s face in her self-defence.

81. Because the magistrate had rejected that the appellant had a genuine belief, the further issue on the Zecevic test of whether any belief had reasonable grounds also did not arise.

82. Again, that reasoning path was properly open on the evidence. There was nothing to indicate that the magistrate must have entertained a reasonable doubt about accepting the complainant’s account and rejecting the appellant’s account. The magistrate did not consider the appellant’s account in isolation. He made reference to the fiancé’s evidence and gave adequate reasons for rejecting that evidence as well. Having done so, the magistrate was left with the evidence of the complainant (which he had accepted) and the evidence of an eye-witness (who he had also accepted). The compelling nature of those accounts was sufficient to make it open to the magistrate to convict on that evidence.

83. Accordingly, the appeal against conviction will be dismissed. The sentence imposed was not manifestly excessive

84. This aspect of the appeal did not identify any particular error. From the relief sought by the appellant, it appeared that she was arguing the sentence imposed was manifestly excessive and the respondent addressed the sentence appeal on that basis. As no other basis for intervention was identified during the hearing, I have taken the same course.

85. I have said in other cases such as Millard v Pomeroy [2022] ACTSC 319 at [7], the starting point on an appeal against sentence (again by way of rehearing) is restraint. A sentence imposed in the Magistrates Court will not be set aside simply because the appellate court hearing the appeal might have imposed a different sentence: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]. There is a strong resistance against appellate ‘tinkering’ with sentences: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [62].

86. The approach was explained in Tracey v The Queen [2020] ACTCA 51 at [37]- [38] (citations omitted):

... Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence or where the sentence is markedly different from sentences that have been imposed in other cases. Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and how the error occurred is not apparent from the judge’s reasons. To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender.

The magistrate’s reasons for sentence

87. The magistrate formed the view that the nature of the conduct fell within the mid-range of objective seriousness of an offence of its type. The reasons for that finding were: (a) There were instances of a much more forceful impact being delivered. (b) The offending was aggravated by the presence of a child. (c) The offending was aggravated by the victim being a child welfare officer in the course of carrying out her duties, a fact known to the appellant.

88. For an offence of assault occasioning actual bodily harm, the maximum penalty for the offence is a term of imprisonment for 5 years, which is relatively serious. The objective seriousness of the conduct must be judged by reference to both the nature of the behaviour in which the offender has engaged, as well as the nature and extent of the actual bodily harm suffered by the victim: R v Newman; R v Reid [2016] ACTSC 102 at [14]. The harm suffered here included injuries to the head of the victim. That is a vulnerable part of the body and can have serious consequences.

89. The respondent submitted that the features of the conduct referred to by the magistrate are established circumstances of aggravation. Certainly, an assault in front of a child against a child welfare officer is objectively more serious than conduct without those features. Those employed in interacting with the community in situations which may be emotionally charged are recognised as being in inherently vulnerable positions. Police officers and paramedics are common examples, but child welfare officers also fall into that category.

90. There was a victim impact statement describing how the incident had caused the victim to suffer from anxiety and how this had affected her both personally and professionally. It suffices to say here that the impact was significant and the ongoing consequences of such were referred to by the magistrate in his sentencing remarks.

91. The magistrate considered the subjective circumstances of the appellant, including her history of social disadvantage and exposure to family violence and trauma, which the magistrate considered to be relevant to the sentencing exercise as well as ameliorating the appellant’s moral culpability for the offending and moderating the role of general deterrence. He also considered the context of the visit and the extenuating circumstances for the appellant in terms of long-term parental responsibility orders made in favour of the Director-General and the trauma of the removal of the appellant’s children.

92. However, the magistrate also took into account the need for specific deterrence in view of the defendant’s relevant prior criminal conviction and the ongoing fraught interactions with child protection authorities.

93. The magistrate discussed options that did not result in a sentence of imprisonment, noting that the appellant was assessed as unsuitable for community service or an intensive correction order. The magistrate considered that this constrained him somewhat in fashioning an appropriate sentence. Due to the objective gravity of the offending, notwithstanding the appellant’s subjective features, the magistrate determined that no penalty other than imprisonment was appropriate. However, he expressed the view that suspending the sentence achieved an appropriate balance between deterrence (specific deterrence) and rehabilitation. In that regard, the magistrate recommended that while under supervision, the offender participate in programs to address her illicit drug use and mental health conditions, as well as counselling to address past trauma, emotional regulation and attitudes towards offending.

94. The appellant argued that the proper exercise of the sentencing discretion should have meant the dismissal of the offence.

95. This conduct was plainly not de minimis or trivial and even with the extenuating circumstances, a conviction was the ordinary consequence of a finding of guilt: Balthazaar v The Queen [2012] ACTCA 26 at [53]. The appellant’s subjective circumstances were not such as to compel an exceptional outcome of no conviction at all (noting that the demonstration of exceptional circumstances is not a pre-condition to the making of such an order: Vuolo v Fall [2023] ACTCA 33; 380 FLR 177 at [37]).

96. Accepting the limitations of sentencing statistics, for what it is worth, authorities in recent years have referred to the fact that the Sentencing Database shows that nearly 59 percent of sentences imposed a term of imprisonment for an offence of assault occasioning actual bodily harm, with 33 percent of those being for between 7 and 12 months: DPP v Stasinos [2023] ACTSC 179 at [49].

97. On my review of the conduct and the sentence, the court was dealing with a blow to the head (on the findings of the magistrate) that caused actual bodily harm, where the victim was a vulnerable person by reason of their position of employment and where the conduct occurred in front of a child. While bruising and swelling are at the lower end of the spectrum of harm, the location was the head, which is a vulnerable part of the body. These were all matters that properly elevated the seriousness of the conduct. While I may not have described this as “mid-range” because of the spectrum of conduct falling within the offence, that label does not alter the substantive assessment undertaken by the magistrate, which I consider was without error.

98. Further, because of that assessment of objective gravity and the lack of other available sentencing options, I am not persuaded there was any error (of the kind articulated in the discussion of the relevant principles above) in imposing a sentence that involved a term of imprisonment for 6 months, albeit suspended. Again, a lesser period of a term of imprisonment might have been arrived at by a different judicial officer, but that is not the test and any interference with that aspect of the sentence would amount to tinkering.

99. The suspension of the sentence was in clear recognition of the subjective features of this appellant. While a two-year good behaviour order might invite closer consideration, I have set out what was driving the magistrate in that regard, and it was the appellant’s rehabilitation. The objective behind a supervised good behaviour order of such length was to give the appellant the opportunity for counselling support, for mental health supports and for interventionist programmes to address her drug use. Engagement with corrective services by way of supervision provides opportunities for the appellant that she may find challenging to pursue, or might not otherwise seek out in the community, if left to her own devices. The magistrate was attempting to raise her up, and I see no error in that approach. On the contrary, it was a proper reflection of individualised justice.

100. For these reasons, the appellant has not demonstrated that the sentence imposed by the magistrate was excessive.

Consequences of s 216 of the MC Act for the appellant’s sentence

101. As a consequence of these findings, the appeal will be dismissed and the stay pursuant to s 216(1) of the MC Act automatically lifted. Ordinarily this would result in the two-year good behaviour order being reset to commence from the date of the orders made on appeal. However, it appears that the appellant has proceeded on a different basis of the good behaviour order having been extant and the passage of time since the appeal was lodged means that in fact the good behaviour order will have already expired but for the operation of s 216(1) of the MC Act. I will hear the parties further on whether any further order is required in that regard.

Orders

102. The orders of the Court are: (1) The appeal is dismissed.

I certify that the preceding one-hundred and two [102] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.

Associate: Date: