DPP v Cahill

1. The offender, Diana Cahill (a pseudonym), is to be sentenced for the following offence: (a) SC CAN 336/2025: Aggravated common assault contrary to s 26 of the Crimes Act 1900 (ACT) which attracts a maximum penalty of 3 years imprisonment.

Agreed facts

2. The offender is the mother of Miss C ("the victim"). At the time of the offending, the victim was aged 12 years and 8 months and was in Grade 8.

3. Emergency action was taken by CYPS on 17 August 2023 and on 13 February 2024 a final Care and Protection Order was made sharing parental responsibility between Ms Cahill and the Director General.

4. At the time of the offending, the victim was residing with the offender.

5. The offender and the victim sometimes argued, including about the offender being unhappy with the victim's friendship group.

6. On Wednesday 13 March 2024, the victim and the offender argued, and the victim did not attend school. The victim became upset due to the offender's behaviour and ran away. The offender was concerned about the victim's whereabouts.

7. On 14 March 2024 at about 4:30pm, the victim was at Woden Bus Interchange with her friend Miss U, waiting inside a temporary bus shelter, on the way to Miss U’s house. The offender arrived on a bus and saw the victim at the bus stop with Miss U.

8. The offender approached the victim in the presence of Mr D.

9. The offender was angry and used a loud voice towards the victim as she approached her, saying "get your fucking ass home" and telling Miss U to 'fuck off'.

10. The offender entered the bus shelter, which was being recorded by CCTV cameras from several angles.

11. The offender quickly approached the victim, who attempted to walk away from her. The offender grabbed the victim's arm and pushed her against the internal wall of the bus shelter and restrained her. The victim repeatedly attempted to struggle free, however the offender maintained a grip on the victim's arm and subsequently manoeuvred her to sit on a bench while standing in front of her. A few members of the public stopped to intervene but were gestured away by Mr D. Mr D sat immediately to the right of the victim, within about 30cm of her, but largely did not interact with the offender or the victim, before walking and standing around the area. The offender made a phone call to her CYPS case worker.

12. After a few minutes, the victim attempted to run away, however the offender ran after her and grabbed her wrist, and the victim attempted to remove the offender's hands. The offender then grabbed the victim's shirt and hair, pushing her to the wall of the shelter and onto the floor. As the victim sat on the floor, the offender pulled the victim's bag strap into her neck for a number of minutes, as the victim attempted to pull the strap towards herself to loosen it.

13. The offender then grabbed the bag strap of the victim's bag, and the victim's collar, pulling these so that they pressed into the victim's neck.

14. The victim repeatedly tried to run to leave, however the offender followed, grabbed and restrained her.

15. The offender then placed one arm over the victim's left hand side neck and the other arm under the victim's right arm, grasping the front of her shirt. Maintaining this position, the offender manoeuvred the victim to the ground.

16. The victim again tried to flee, and the offender held her wrist tightly with both hands and used her leg and body to shove the victim against the wall.

17. The victim again attempted to leave the bus shelter area, pulling away from the offender using force. The offender pulled the victim from behind by her shirt while the victim tried to move away, the action of which pulled the collar of her shirt tight against her neck.

18. The victim repeatedly pulled at the shirt, attempting to pull it off on her neck. The offender grabbed and pulled the victim as the victim cried. A number of bystanders approached the offender and attempted to intervene, however the offender was not deterred by this. The offender maintained a tight grip on the victim's shirt, stretching the shirt and preventing the victim from leaving, for a further 10 minutes. The victim felt as if she couldn't breathe and that she was unable to speak and felt dizzy.

19. Miss U remained nearby and observed the duration of the assault.

20. The victim told the offender to "let go" and "stop hurting me". The victim felt scared and was shaking.

21. During the incident, the offender repeatedly told the victim words to the effect of "if you don't shut up, I am going to drag you to the floor" and "if you move, I will knock you to the ground".

22. During the incident, the victim repeatedly tried to move away from the offender, stepping, scuffling, running away from the offender, cantilevering her body weight away from the offender, and flinching away from the offender when the offender spoke or yelled at her.

23. Several members of the public witnessed the offender assaulting the victim and became concerned for the victim's wellbeing. [Redacted], and passers-by including [redacted], [redacted], [redacted], [redacted], [redacted] and an unknown caller all called police during the incident.

24. At approximately 4:54pm police arrived and told the offender to let the victim go. The offender unwound her hand from the victim's shirt and let the victim go. The victim ran to police.

25. Upon police arrival, the offender stated to police that the victim had ran (sic) away, that she had looked for her all day, that CYPS told the offender to bring the victim home, and that the victim does not listen.

26. The offender stated: "Miss C has self placed back at home", "Yesterday afternoon we were in the shopping centre, I went to the toilet come out and Miss C was nowhere to be seen. Miss C had taken her phone and taken off with Miss U" and, "I spoke to [redacted] then which is my CYPS case worker. She told me to get Miss C and take her home. As soon as I said that to Miss C she was carrying on. There was an audience. I grabbed Miss C and held her there. You're not going anywhere. I told everyone that she needs to get her ass home."

27. At approximately 5:20pm police placed the offender under arrest. The offender denied assaulting the victim and stated that "CYPS told [her] to hold her daughter". The offender stated that she was not with Mr D but that he had been on the same bus as her.

28. Following the assault, the victim was distressed, shaking, breathing irregularly, and experienced pain to her neck and back.

29. The offender was treated by an ACT Ambulance Service member at the scene, and was transported to Canberra Hospital, where she was assessed by Dr [redacted] at 11.00pm 15 March 2024.

30. The victim sustained the following injuries during the assault: (a) 4 red linear marks on the right side of her neck. (b) 2 red linear abrasions of about 7cm and 3cm, to her left wrist. (c) 1 red abrasion of about 1 cm to her right wrist. (d) A clump of the victim's hair was pulled out.

Nature and circumstances of the offending

31. The maximum penalty serves as an indication of the seriousness of the offence and reflects the community’s intolerance for the use of violence where there is a familial relationship between the victim and the offender.

32. In coming to consider the nature and circumstances of the offending it is necessary to assess the objective seriousness of the conduct and where it sits on the spectrum of conduct which can constitute the offence.

33. The prosecution accepted that the offender was entitled to assert parental authority over the victim which included physical restraint. The prosecution submitted that the offence was constituted by an excessive use of force by the offender in seeking to legitimately exercise parental control and/or to lawfully chastise the victim. The prosecution relied on the combined effect of individual acts committed in the course of restraining the victim particularised as the offender holding the victim by her t-shirt and the strap of her backpack which pulled against area of the victim’s neck, the use of the offender’s leg to force the victim to submit and pulling the victim’s hair as part of the effort to restrain her.

34. Counsel for the offender indicated that by her plea of guilty the offender accepted that the combined effect of the particularised conduct was that she used excessive force to exercise parental authority over the victim.

35. Security camera footage captured the incident. It was played at the sentencing hearing and revealed the nature and extent of the conduct. The footage was captured from a position proximate to both the offender and the victim, it was in colour, and it was clear. The physical difference between the offender and the victim was not significant.

36. The footage captured that once the offender physically took hold of the victim she appeared determined not to let go. The victim immediately indicated her unhappiness at being engaged by the offender. The offender and the victim proceeded to engage in what can be described as a physical battle of wills. As the offender pulled at the victim in various ways, the victim pulled forcefully against the offender. The victim on occasion dropped her body weight in an effort to break the offender’s hold. The offender continued to hold onto the victim when it was apparent that the victim wished to be released. Members of the public stopped and engaged with the pair and the offender appeared to attempt to explain the interaction. The offender attempted a phone call and was obviously remonstrating with the victim. The victim appeared upset. The offender appeared angry, frustrated and to be trying to assert her authority over the victim verbally and physically. She also appeared relieved upon first approaching the victim in the bus shelter.

37. The physical acts of the offender were forceful, but they did not have the appearance of being uncontrolled or unrestrained. The force of the offender’s restraint appeared to be in direct response to the force used by the victim in continuing to resist and pull away. Which is to say that there were no gratuitous acts of violence by the offender toward the victim despite the opportunity for such acts.

38. The prosecution accepted that the conduct relied upon to make out the offence did not occur for the entire duration of the incident which continued for some minutes. When police arrived, the offender had hold of the victim’s shirt and immediately released it to engage with them. The victim was a 12-year-old child; inherently vulnerable because of her age and entitled to feel safe in the presence of her parent. The offending occurred in public and concerned members of the public passing by as the incident unfolded. The victim was distressed because of the offender’s conduct and experienced physical pain, some transient injury and emotional distress.

Subjective circumstances

39. The offender is a 33-year-old woman with a childhood history of disadvantage and instability which included early exposure to domestic violence as well as drug and alcohol abuse. Her father was violent, and the family moved around as a result. She was the victim of child sexual abuse which resulted in an ectopic pregnancy when she was 13 years of age. The offender nominated the period of her life between 12 and 18 years of age as particularly unstable. She attended many schools and slept wherever she could “find a bed”.

40. The offender frankly accepted that drug use has been a persistent challenge of her adult life and that she uses methamphetamine as a “coping mechanism” when she feels overwhelmed. The father of her first son was killed in a car accident and she has struggled to maintain a stable partnership. She does not appear to have substantial family or other supports to draw upon.

41. The offender has five children. The eldest of those children lives with their father in NSW. The offender is a sole parent to the other four children including the victim. In August 2023, all four children were removed from her care by Children, Youth and Families (CYF) (previously known as Child and Youth Protection Services, or ‘CYPS’) and the offender commenced engagement with the Director General eventually consenting to orders being made five months later with a view to full restoration of the children to her care.

42. In a letter tendered unopposed by the prosecution the offender described many of the difficulties that she experienced in parenting the victim when she commenced high school which included truancy, smoking and “running away”. At the time her three other children were aged 1, 3 and 8. The offender does not own a vehicle. The offender described reaching out to support services for assistance without success and her escalating concern about the victim’s behaviour as well as the effect of a friendship the victim had developed which caused the offender real concern.

43. In the hours preceding the incident with the victim the offender had completed a pregnancy termination. She was on a bus travelling home from that procedure when she saw the victim in the bus shelter. The presence of Mr D referred to in the agreed statement of facts and identified in the security camera footage, was an additional factor influencing the offender as they had previously been in a relationship that saw him charged with threatening to kill her. His presence on that day was by chance and caused the offender significant anxiety in circumstances where he has a history of stalking behaviour toward her, she directed him to leave her alone and he followed her onto the bus. That offender is currently in crisis accommodation because of the risk of violence to her that he presents. She is engaged with the Australian Federal Police in relation to further offending conduct against her by Mr D, but his current location is unknown which precludes the offender from successfully obtaining a family violence order against him.

44. All four children, including the victim, remain the subject of orders which allocate the offender shared parental responsibility with the Director General. The offender is actively working toward the restoration of her children to her full-time care and as a result is complying with all the demands made of her by CYF which includes drug testing. The offender has engaged with Karralika and intends to take up a placement in their rehabilitation program as soon as it becomes available. The offender identified the need for her to continue to address her use of illicit substances and the risk it creates for her with respect to engagement with the criminal justice system and her position as a parent.

Responsibility, remorse and rehabilitation

45. The effects of the offender’s disadvantaged childhood do not diminish over time and must be given full weight in the sentencing exercise. The offender’s exposure to family violence at an early age, a matter outside of her control, sheds light to an extent on her recourse to excessive physical force in the face of conflict with the victim as well as her history for offences of violence. I am satisfied that the offender’s disadvantaged background reduces to some degree her moral culpability for the offending and that this should moderate the weight to be afforded to general deterrence and denunciation.

46. The offender explained that her sole purpose in restraining her daughter was to have her return home. The offender expressed her love for the victim and regret in a general sense for the escalation in the incident. The offender was adamant that she did not mean harm to the victim by her conduct. In my view this assertion was consistent with the nature of the conduct clearly captured in the security camera footage but not necessarily reflected in the description of it in the agreed statement of facts.

47. The prosecutor pointed to comments attributed to the offender in an incomplete court duty report where she was recorded to express concerns about entering a guilty plea because she did not believe she had committed a crime. Counsel for the offender confirmed the offender’s adherence to her plea at the sentencing hearing. Counsel reiterated some of the complexity which attended to this matter in explanation for the offender’s commentary, highlighting the effect of the conduct having foundation in the lawful exercise of parental authority, the compelling motivation the offender was accepted to have and the absence of any intention to cause the victim harm.

48. The Director has accepted the plea on the basis that the offender went beyond the limits of lawful correction and the offender specifically acknowledged that her conduct was excessive in her letter to the Court. The initial offer by the offender to resolve the matter by plea of guilty in October 2024 was rejected by the Director. In the circumstances I am satisfied that the offender has accepted responsibility for her conduct and expressed some remorse.

49. The offender has been on conditional bail since May 2024 without breach. The conditions of bail were restrictive, in particular with respect to her engagement with the victim. The offender was required to accept supervision from ACT Corrective Services (ACTCS), reside at a particular address and consent to the provision of the results of drug testing conducted by CYF to ACTCS. She was required to comply with directions from CYF including with respect to drug testing. The offender’s engagement with ACTCS in the period since May 2024 was described as compliant and largely positive. She has not committed any further offences and there is no suggestion that any engagement with the victim or with representatives of CYF has been anything other than appropriate and in compliance with the bail undertaking.

50. The offender’s criminal history bears out her description of the challenge she has had with substance abuse over many years. Her criminal history limits the leniency that can be afforded to her. She does have several entries for offences of violence, [redacted]. She has also had lengthy periods of no engagement with the criminal justice system which supports her capacity for sobriety and stability. The offender’s last offence of violence, which was also the last significant offence on her criminal history, was over a decade ago.

51. Compliance by the offender with the supervisory regime of CYF is necessary for her to have any hope of her children being restored to her care. I unreservedly accept that she is motivated to demonstrate her suitability as a parent. She has regular contact with her three youngest children and remains hopeful of them being restored to her full-time care. I am satisfied that the offender has good prospects of rehabilitation.

Plea of guilty

52. The offender entered a plea of guilty following negotiation between the parties following the criminal case conference. As I have already noted the offender offered to resolve the matter at the criminal case conference on 29 October 2024 with an amended statement of facts. This offer was not accepted by the prosecution. The offer for resolution was again made by the offender on 13 May 2025 and the matter resolved following some negotiation as to the agreed facts.

Time in custody

53. The offender spent 55 days in custody in relation to the offence.

Current sentencing practise

54. As I observed in DPP v Howe [2024] ACTSC 178, common assault charges are not regularly dealt with in this Court being typically resolved in the ACT Magistrates Court. I recorded at [88]: For the offence of common assault sentenced in the ACT Magistrates Court, the penalties imposed include a good behaviour order (GBO) (49.7 per cent), a period of full-time imprisonment (16.5 per cent), a fine (11.1 per cent), a fully suspended sentence (11 per cent), an ‘other order’ (5.7 per cent), a partially suspended sentence (4.8 per cent), a period of imprisonment to be served as an intensive corrections order (ICO) (0.5 p[er cent) and finally, periodic detention (0.3 per cent). For the offence of common assault sentenced in the ACT Supreme Court, the penalties imposed include a period of full-time imprisonment (48.1 per cent), a fully suspended sentence of imprisonment (17.5 per cent), a period of imprisonment to be served as an intensive corrections order (ICO) (13 per cent), a partially suspended sentence (8.4 per cent), a GBO (8.4 per cent) and finally, a fine (4.5 per cent)

55. The database does not yet appear to record any outcomes for the aggravated version of the offence of common assault. Nor does it permit distinction between a good behaviour order imposed with conviction and one imposed without conviction. In any event there is limited utility in bare sentencing statistics and the reference above to common assault was not the aggravated version of the offence now before me. I also bear in mind that a consideration of comparable sentencing outcomes is to ensure consistency in the application of legal principle, not the pursuit of numerical equivalence.

Determination

56. A sentence must be just and appropriate in all the circumstances. Notwithstanding a reduction in the offender’s moral culpability and a moderation of general deterrence and denunciation as a result, those purposes of sentencing remain relevant considerations. The sentence I impose must recognise the harm done to the victim.

57. The Director did not submit that a period of imprisonment was warranted. As I have already recorded the offender spent 55 days in custody for the offence and she has been on bail for 18 months without breach. In light of that, it could hardly be said that the offender has not been punished for her conduct. I am satisfied that specific deterrence has been largely, if not entirely, achieved. Rehabilitation remains a realistic aspiration, and it should feature as an important consideration.

58. I have had regard to those matters contained in s 34B of the Crimes (Sentencing) Act 2005 (ACT) including the preamble to the Family Violence Act 2016 (ACT). I acknowledge that which the community has consistently made plain and which decency dictates, namely, that family violence is unacceptable in any form. I also acknowledge that which is now well accepted, being that “children exposed to family violence are particularly vulnerable and the exposure may have a serious impact on their current and future physical, psychological and emotional wellbeing”: per para 2(d) to the preamble to the Family Violence Act.

59. On the day of the incident the offender was in a difficult position. There was ongoing conflict in her relationship with the victim about the victim not attending school and the offender’s disapproval of her friendship group. The victim was the subject of state intervention which required the offender to share parental responsibility with the Director General. The victim was defying the offender’s reasonable instruction for her to return home. This defiance came after the victim had ‘run away’ from the offender the day before the incident and not returned. The victim ran away after ‘self-placing’ at the offender’s home with the approval of the Director General.

60. The offender explained that on the day before the incident when the victim ran away they had gone together to a shopping centre and the offender went to use the bathroom, leaving her bag with the victim. When she returned from the bathroom her bag was in the place where she had left the victim, but the victim was nowhere to be found. As at the time of the incident the victim’s location had been unknown at least overnight and the offender had been actively searching for her. The offender had been instructed by a CYF caseworker to “bring the victim home”.

61. It is unsurprising (and not unreasonable) that in those circumstances the offender was angry with the victim when she came upon her at the bus stop. The offender was entitled to issue the victim with the direction to return home and in the face of the victim’s refusal, attempt some restraint or physical coercion of her. The prosecutor accepted for example that had the offender limited her physical interference with the victim to holding onto her t-shirt she would have “had a defence”.

62. The instruction for the victim to return home had particular significance on this occasion, for this offender, in the context of the overarching scrutiny of her parenting capacity by the Director General; it having been made clear that the victim required her control and direction. The victim, at 12 years old, was not sufficiently mature to be entrusted to dictate her own day-to-day movements to the offender. It was reasonable for the offender to be concerned about the effect of any uncertainty on her part about the victim’s whereabouts on the Director General’s view of her suitability as a parent. In light of the lead up to the incident, it was also reasonable for the offender to be concerned about the victim’s safety generally should she flee the area or get on a bus.

63. The age of the victim in this instance undoubtedly established her vulnerability in relation to the offending but it also strongly supported the offender’s determination to have her comply with the instruction to return home. The victim’s defiance was not a refusal to make her bed or eat her vegetables. It was defiance that broadly risked her safety as well as the offender’s capacity to demonstrate that she was capable of sharing parental responsibility with the Director General.

64. None of this analysis is to condone or excuse the resort to violence by frustrated, worried and frightened parents or to disregard the effect of physical violence or verbal abuse perpetrated upon or in the presence of children. The observations of Loukas-Karlsson J in Zl v Corey [2020] ACTSC 143 at [123]-[124] are apposite and I embrace them: Offences occurring in the family home are indeed a scourge in our Australian community. The Courts must play their part in denouncing such conduct. It is not only about the transmission of physical violence but the transmission of the idea from one generation to the next that violence is the answer to life’s problems. Violence upon children must be deterred and the consequent transmission of violence from one generation to the next must also be deterred. Violence is not the answer to problems at home, nor is it the answer to problems outside the home in the public sphere, in our broader society. To assert, however, that in every case of this nature there must be imprisonment, or there must be a conviction, is anathema to individualised justice.

65. The tension inherent in the relationship between a parent wanting to assert their authority and a pre-teen keen to assert their independence confident in their own youthful judgment is, I daresay, as old as time. The prosecutor accurately submitted that this would be a circumstance familiar to family groups across the community as part of the submission underlining the significance of general deterrence for matters involving family violence.

66. But the circumstances of the offending in this instance cannot be ignored. For the reasons I have explained the circumstances in which the offending occurred were not circumstances typical of the parent/pre-teen child relationship. The circumstances involved the offender under significant emotional strain, heightened stress and anxiety and a reasonable perception of risk to the victim and to the offender’s ability to maintain a shared parenting role. The offender had just terminated a pregnancy, had unexpectedly been approached (and followed) by her former abusive partner and had randomly come upon the victim. The circumstances which attended to the commission of the offence were unusually fraught. They were, in my view, extenuating circumstances in the sense that they bore a direct relationship to the offence that was committed.

67. The offender submitted that it would be an appropriate exercise of my discretion to make a good behaviour order without conviction pursuant to s 17 of the Crimes (Sentencing) Act. The Director opposed a non-conviction order.

68. Section 17 of the Crimes (Sentencing) Act relevantly provides: (2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order): (a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender; (b) a good behaviour order under section 13. (3) In deciding whether to make a non-conviction order for the offender, the court must consider the following: (a) the offender’s character, antecedents, age, health and mental condition; (b) the seriousness of the offence; (c) any extenuating circumstances in which the offence was committed. (4) The court may also consider anything else the court considers relevant.

69. The principles which apply to the exercise of the discretion not to record a conviction pursuant to s 17 are well settled. They can be summarised as follows: (a) A conviction is the ordinary consequence of a finding of guilt and marks the disapproval of the offender’s wrongdoing by the court and society. (b) The discretion conferred by the section is broad. The exercise of the discretion is not restricted to a particular offence type or category, and an offence need not be trivial or at the lowest end on the spectrum of seriousness before the discretion can be appropriately exercised. (c) A non-conviction order which imposes a good behaviour order pursuant to s 13 of the Crimes (Sentencing) Act is a form of punishment. (d) Whilst an outcome pursuant to s 17 is exceptional; the exercise of the discretion does not rely on the establishment of exceptional circumstances. That said, “cogent or compelling circumstances” must be established before a court can deviate from the ordinary consequence of a finding of guilt: Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 at [49] per Burns J.

70. Applying those principles, I turn to specifically address the considerations contained in s 17(3) of the Crimes (Sentencing) Act: (a) The offender’s character, antecedents, age, health and mental condition: (i) The offender is 33 years of age with a criminal history identified at [50] which contains like offending. The most recent entry of violence is from an offence in 2012. The offender’s criminal history demonstrates that she has had substantial periods where she has not engaged with the criminal justice system. The offender became a mother at a relatively young age and has remained a sole parent. The victim’s father has not been present in her life, nor the father of her other three youngest children. The offender has carried responsibility for parenting four children alone and has remained engaged with the Director General in an effort to remain a central figure in her children’s lives. This is to her credit. The offender frankly accepted that illicit substance use has been a challenge for her which has had particular effect on her parenting abilities. She is pursuing opportunities for rehabilitation. (b) The seriousness of the offence: (i) The excessive force relied upon for the offence was the combined effect of some acts which caused transient physical harm and emotional distress to the victim and additionally created concern in members of the public who were exposed to it. It was not a fleeting incident though the offender did not use excessive force for the entire interaction. The prosecution conceded that the offender was entitled to exert a level of control and authority over the victim. It was in the poor execution of that authority that saw the offender fall foul of the criminal law. I agree with Ms Baker- Goldsmith’s submission that the tipping point for the conduct moving from a reasonable exercise of lawful correction to an offence of common assault was not significant. (ii) It was, in my view, an offence toward the lower end of the spectrum. (c) Any extenuating circumstances in which the offence was committed: (i) The offence was committed in extenuating circumstances. The basis for this finding is set above at [66]. The circumstances inevitably contributed to the offender’s emotional condition at the time of the offending which in turn influenced her desperation to ensure that the victim complied with her instruction and her resort to conduct, which went beyond the bounds of lawful parental authority.

71. Section 17(4) permits a consideration of “anything else” that might be considered relevant. That the offender was held on remand for a substantial period in relation to an offence that the Director conceded does not warrant a period of imprisonment, is a compelling consideration. This has had the effect of punishing and deterring the offender along with demonstrating to her the gravity of her conduct. The deterrent effect of the period on remand, as well as the offender’s appreciation of the gravity of the incident notwithstanding any view she held about whether the conduct was criminal, was reflected in her compliance with onerous bail conditions for a substantial period. The offender’s remand had an additional and dramatic effect in that it saw the regular contact she was having with her three other children, in order to build a case for restoration, severely disrupted. Upon her release on bail the offender was required to establish herself again as suitable for contact with those children and to rebuild her case for restoration.

72. The effect of submissions by the prosecutor was that by her actions the offender achieved two things. First, she exposed her struggle to respond appropriately to the victims’ behavioural issues and secondly, that the victim’s safety, which she was attempting to preserve, was ultimately compromised by her own actions. The prosecutor also submitted that the offender could have employed alternative methods to elicit the victim’s compliance with her instruction to return home. So much may be accepted.

73. There is much to be said for hindsight and the ability it provides to carefully pick over and weight to a nicety decision made in the heat of an emotional moment. Again, this is not to condone or excuse the offender’s conduct but to acknowledge the reality of the circumstances she faced, and which resulted in the escalation of lawful conduct to the point that it constituted a criminal offence. Of course, had the offender simply accepted the victim’s refusal to return home and permitted her to leave the bus shelter for places unknown, the offender would have been required to explain her approach to the Director General when questioned on her knowledge of the victim’s whereabouts.

74. I observe here for completeness that sadly, the concerns of the offender with respect to the victim at the time of the offending have been realised. In the Director General’s care, the victim now has a criminal history, is engaging in risk taking behaviours such as drug use and sexual activity and is not residing in stable accommodation.

75. The offender continues to pursue assistance and support with respect to her substance use issues and continues to attempt to demonstrate herself capable of caring for her children. Rehabilitation is something I have found she is actively pursuing and capable of achieving.

76. The prosecutor highlighted the move by the legislature in 2022 to create an aggravated offence scheme for offences involving family violence which increased maximum penalties including for the offence of common assault. The explanatory statement to the amending legislation noted that setting higher penalties provided “guidance to the courts and the ACT community about the seriousness of family violence offences compared to other offences” and enhanced the capacity for community protection “by allowing longer terms of imprisonment to be imposed”: see Explanatory Statement, Family Violence Legislation Amendment Bill 2022 (ACT).

77. It is expected that courts will recognise and reflect the intention of the legislature in creating an aggravated offence scheme. But it of course remains the case that the application of the instinctive synthesis which attends to each sentencing task must give effect to justice that is individual. Notwithstanding the legislature’s intent, each case remains to be determined on its facts and by taking into account the matters personal to the offender.

78. In circumstances where the offence does not warrant a period of imprisonment the period in custody served by the offender cannot be backdated. It is nonetheless a significant consideration for the reasons I have explained. Without knowledge that the offender spent 55 days in custody for an offence which did not warrant a term of imprisonment, the outcome I consider appropriate may take on the appearance of being attended to by substantial, perhaps unwarranted, leniency. That is an unfortunate impression, but it should not, as Ms Baker-Goldsmith submitted (citing R v McCallum [2020] ACTSC 15 at [82] per Murrell CJ) compel the imposition of a sentence which is not just and appropriate.

79. In the circumstances particular to this case, I am satisfied that the significance of general deterrence, denunciation and recognition of harm are not undermined by an outcome that does not record a conviction for the offence. I am satisfied having carefully considered those matters which s 17 mandates, as well as other relevant matters that I have identified that the imposition of a good behaviour without a conviction is in this instance the just and appropriate outcome.

Orders

80. The orders of the Court are: (a) I decline to record a conviction on SC CAN 336/2025. (b) Pursuant to s 17(2)(b) of the Crimes (Sentencing) Act the offender is required to comply with the obligation to be of good behaviour pursuant to s 13 of the Crimes (Sentencing) Act and the core conditions prescribed in s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 6 months from today.

I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: P Beohm Date: 17.10.2025