1. Ms Smith entered early pleas and is entitled to a 'full discount'. I must have regard to that matter, in determining the appropriate penalty: s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT). This has a utilitarian benefit as no court time is allocated to a hearing and the witnesses are spared the stress and expense of attending court to give evidence: R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [49]. I note that the prosecution case was certainly not a weak one, but no submission was made to me that it was overwhelming. I note CCTV footage depicts the incident.

1. The prosecution tendered the criminal history of Ms Smith. Ms Smith has limited history. As a 12-year-old child, she was charged with a 'common assault'. I have heard nothing about this offending, and in my view, it has limited relevance given it occurred a significant time ago and given her age at the time. Her adult criminal history is also limited. In the ACT, she was dealt with for a minor theft matter on 16 March 2023 and the charge was dismissed.
2. The criminal history of a person cannot be used to impose a sentence which is ultimately disproportionate with the crime, but its existence, or otherwise, is relevant to how much leniency a Court can afford an offender: Cotter v Corvisy [2008] ACTSC 64 and R v Carpenter [2022] ACTSC 6.
3. Ms Smith has, in effect, been before this Court for a period of four months. Although this was not a 'deferral,' the proceeding has been before the Court for some period and Ms Smith has not re-offended.

1. The prosecution tendered a 'victim impact statement' pursuant to Part 4.3 of the Crimes (Sentencing) Act 2005 (ACT) by the complainant, dated 25 June 2024. The statement explains the harm caused to the complainant by Ms Smith.
2. The complainant details various impacts on her because of the incident. Although the entire statement will not be extracted here, the complainant explains that she had previously found her workplace a safe environment. She explains that she was unexpectedly met by physical violence and has found herself wary of other service providers since the incident. As at 25 June 2024, she was still trying to mentally recover. The complainant observes that she did not deserve to be assaulted by Ms Smith. Further, she has suffered financially as she has had bald patches left behind because of the assault and has had to buy hair products and new hair extensions. This has correlated with a negative impact on her self-esteem and confidence. She explains that, as of 25 June 2024, in all her subsequent shifts, she has thought of the assault and it has impacted her passion and love for her job.
3. The effect of a crime on the victim is a matter which this court must consider in sentencing pursuant to s 33(1)(e) and (f) of the Crimes (Sentencing) Act 2005 (ACT). Ms Smith's actions have had an ongoing negative impact on the complainant, aside from the pain and impact on the day.

1. According to the pre-sentence report of ACT Corrective Services dated 24 October 2024 ('PSR Report') Ms Smith is an Aboriginal woman from the Yuin nation with strong connection to country. The PSR report was undertaken while Ms Smith was in the Adult Mental Health Unity ('AMHU') as a result of being self-admitted due to suicidal intent in the context of paranoid delusions.
2. The PSR records that Ms Smith was the second of two children from her parent's union. She also has three younger half-siblings. I do not have information about the circumstances of her parent's childhoods. Ms Smith described a chaotic childhood in which she was sexually abused and the victim of domestic violence by age five. Her father was abusive and violent and was incarcerated most of her life.
3. Ms Smith's mother appears to have a substance abuse disorder. She was herself the victim of sexual offending and family violence. Ms Smith and her older sister were the primary carers of her younger half-siblings due to her mother's inability to care for the children. Ms Smith attended numerous primary schools and left school in year seven. She has been diagnosed with dyslexia.
4. Ms Smith started using alcohol at age thirteen and began heavily binge drinking which escalated to daily drinking by age fifteen. She reduced this drinking during pregnancy. Ms Smith describes herself as an alcoholic.
5. Ms Smith has had three significant relationships. Ms Smith reported that in each of these relationships she was adversely affected by family violence directed at her.
6. Ms Smith stated to the PSR author that she was enrolled to study psychology[3] and that she intended to apply to the Australian Defence Force Academy ('ADFA'). She has previously worked, albeit in relatively short-term roles.
7. In terms of her attitude to the offences 'she expressed remorse for attending the vicinity and acknowledged in hindsight, it was triggered by her past trauma. She did not express concern for the victim and stated she was concerned about the impact of a sentence on her future enrolment in the army and ability to care for her children.'

Background of Ms Smith: Report of Vanessa Edwige

1. After this matter was adjourned, Ms Smith obtained a psychological report dated 28 January 2025. The author of this report was registered psychologist Vanessa Edwige.
2. In addition to the information provided in the PSR, Ms Edwige's report provides a detailed history of Ms Smith's upbringing. She explains that Ms Smith is a 'Yuin Watiwati woman though ancestral birthrights of her mother and father.' The report details that Ms Smith was 'sexually abused by her father when she was four years old.' She described having subsequent flashbacks.
3. The report details some periods of stability in her childhood, but after the age of seven, a childhood in which Ms Smith was moved around primarily due to her mother's substance abuse and violence in the various household she was moved between. The report records that Ms Smith was deprived of basic necessities as a child and exposed to violence from her mother's partners and others. She describes growing up between her grandmother, aunt and mother as well as removal by child protection authorities and time spent in foster care. In one nine-month-long foster care placement, Ms Smith and her sister were mistreated, and they were returned to the care of her grandmother.
4. Ms Smith started drinking alcohol at thirteen in the company of older family members. Between thirteen and sixteen, she spent time between refuges and living with a man who had been a client of her mother's when her mother herself was undertaking street sex work.
5. Ms Edwige records that Ms Smith started her first serious relationship at age sixteen, this man being the father of her two daughters. This relationship was characterised by physical abuse. That partner was incarcerated for family violence against her. During this relationship, Ms Smith had to seek medical attention because of an assault where she was kicked to the head and split her head open. She left this partner when he was in jail.
6. Ms Smith's next long relationship was characterised by 'psychological violence and emotional manipulation.' This partner was diagnosed with schizophrenia. During most of the period of their relationship, this partner was incarcerated. Ms Smith gave evidence in Court proceedings against this partner, and his other associates. She describes her life as being threatened and having to move houses three times due to fears for her safety.
7. According to Ms Edwige, Ms Smith started using marijuana at age twelve, before ceasing at age thirteen and starting drinking. She stopped drinking at age twenty-six.
8. According to Ms Edwige, in 2020/2021, Ms Smith had surgery after cutting her throat. She had a psychotic episode in 2020/2021. The report states that in March 2024 (around the time of the offending) she was 'then hospitalised for approximately three weeks.'[4] In September 2024, in the same month when she was originally due to be in court for these charges to be sentenced, she tried to douse herself in petrol in the context of a psychotic episode. Ms Edwige reports that both her sisters are diagnosed with schizophrenia.
9. Ms Smith has been engaged in therapy for two years and has accessed counselling though Victim Support. She was, at the time of this report, taking sertraline.
10. Ms Edwige's report draws on literature about trauma contained in the Bugmy Bar Book, particularly in terms of the impact of trauma on a person's development and sense of identity. It further refers to the impact of a parent with a substance abuse issue on a person, including a greater risk of adverse developmental outcomes. The report also extracts portions of the Bugmy Bar book which relates to the poorer outcomes for children who are placed in out of home care environments, and who do not complete their schooling. Ms Edwige also extracts parts of the Bugmy Bar Book, which include that '[a]buse and neglect have lifelong and intergenerational consequences.'
11. Ms Edwige states:

It is evident from [Ms Smith's] childhood and adolescent history that she has experienced significant adverse childhood experiences. She was exposed to disadvantage that in my opinion has had a significant impact on her social and emotional wellbeing and continues to do so. [Ms Smith] presents with childhood history of disadvantage that in my opinion has resulted in complex developmental trauma. [Ms Smith's] psychological state and how she views herself in the world has been deeply affected by these adverse childhood and adolescent experiences.

12. Ms Smith discussed the index offending with Ms Edwige. She stated that the male patron was 'talking down to her.' She stated that she had not taken her medication for a month. She said that when the complainant 'put her hand on my neck it triggered me and I blanked out. I felt like it was all of them against me'. Ms Smith further stated that she was expressing paranoia and that she 'regret[s] doing what I did putting my hands on her. I wish I walked away.' I note that Ms Smith did not provide as detailed an explanation as to the catalyst to the conflict to Ms Edwidge. In the Circle, she provided greater detail in respect of the male patron's behaviour towards her, or her perception that the reception staff were unsupportive of her.
13. Ms Edwige administered the 'Adverse Childhood Experiences Questionnaire' (ACE-Q) and further opines that:

[Ms Smith] has a significant childhood and adolescent trauma history which has impacted on her ability to self-regulate...[and] which have had a significant effect on her mental and social wellbeing.... [Ms Smith] presents as a woman that has experienced significant adversities throughout her life... She was exposed to significant trauma in the context of her relationships. [She] continues to present with recurrent and intrusive memories of the traumas she experienced as a child adolescent and adult... She continues to experience physical reactions to distressing memories in the form of increased anxiety...[She] meets the diagnostic criteria ...for Complex Post Traumatic Stress Disorder.'

14. Ms Edwige further opines that Ms Smith meets the criteria in the DSM 5 for Brief Psychotic Disorder and states Ms Smith was suffering both diagnoses 'at the time of the offence and is suffering from mental health impairments that were clinically significant.' Ms Edwige explains that people suffering Brief Psychotic Disorder 'typically experience emotional turmoil or overwhelming confusion. They have rapid shifts...their level of impairment may be severe including exercising poor judgment, cognitive impairment, and acting on the basis of delusion. There is an increased risk of suicidal behaviour during the acute episode.' She explains that 'these disorders significantly impacted on [Ms Smith's] emotional regulation, decision making and judgment.' I note there is little contemporaneous material available about Ms Smith's mental health at the time, and I rely on Ms Edwige's expertise in reaching that conclusion.
15. Ms Edwige states that 'at the time of the offences [Ms Smith] presented with significant mental health disorders...and these disorders impacted on her ability to make sound judgments and fully appreciate at the time the wrongfulness of the act.' She notes that Ms Smith has 'a significant trauma history that can continue to emerge under extreme stress' but that appropriate treatment could reduce any risks associated with that emergence.
16. In relation to appropriate treatment, Ms Edwige opines that:

[Ms Smith] requires...significant support to address her trauma and have opportunities to work therapeutically to enhance her social and emotional wellbeing in an environment that is safe and conducive to therapeutic change. She requires opportunities to reconnect with her culture and engage in healing practice to enhance wellbeing.

17. Ms Edwige's report details specific proposed plans for Ms Smith's conditions stating that '[Ms Smith's] prospects of rehabilitation are positive through accessing intensive therapeutic work that focuses on skill development in the areas of self-regulation, coping skills, resilience building and self-esteem.' Ms Edwige notes that Ms Smith expressed 'a genuine interest in continued support', noting such support would be likely to be required for a lengthy period of time.

1. A brief 'Mental Health Assessment Report' was prepared for the court by Lillian Pham, clinical psychologist. This report refers to a diagnosis of a 'major depressive' disorder. It refers to a 'history of crisis contact with ACT mental health services.' In Ms Pham's opinion, Ms Smith 'presented with good insight and judgement regarding her mental health and treatment needs.' Ms Smith told Ms Pham that she has been diagnosed with mental health issues from age twelve. Ms Smith had ceased antipsychotic medication and 'denied any relapse in symptoms.' Ms Pham described Ms Smith as having 'two previous hospital admissions...which appear better explained by a complex trauma than a psychotic illness, with no recorded history of perceptual disturbance or paranoia outside periods of acute distress.'

1. True remorse can be a 'major factor' influencing prospects for rehabilitation: DPP and Monaghan [2024] ACTSC 183 and see R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. In Roff v R [2017] NSWCCA 208 at [25] the Court said that 'an offender...may anticipate a lesser sentence than a co-offender who has not been found to be remorseful.' The strength of the case is relevant, in that if a plea may result from the recognition of the inevitable: R v Winchester (1992) 58 A Crim R 345. In this case, it appears there was a strong case, but I accept that her plea of guilty is an indication of genuine remorse and acceptance of responsibility.
2. Ms Smith expressed a degree of remorse about her involvement in both the PSR and to Vanessa Edwige. She did not demonstrate appropriate empathy for the victim but identified that she wished she had walked away. In my view, she has shown some remorse. In my view, this remorse is relevant to her prospects of rehabilitation and causes me to view those prospects more positively than I would otherwise. I note she has also been a cooperative participant in the court process.

1. I accept that the principles from Bugmy v The Queen (2013) 249 CLR 571 are enlivened in this matter. In Bugmy v The Queen (2013) 249 CLR 571, Gageler J at [56] said that 'the weight to be afforded to the effects of social deprivation in an offender's youth and background is in each case for individual assessment.' His Honour explains at [40] that the moral culpability of a person raised in circumstances surrounded by alcohol abuse and violence may be lesser, and therefore the sentence mitigated. At [42]-[43] Gageler J continues;

The effects of profound deprivation do not diminish over time and should be given full weight. A background of that kind can leave a mark on a person throughout life and compromise their capacity to mature and learn from experience...an offender's childhood exposure to extreme violence and alcohol abuse may explain Ms Smith's recourse to violence when frustrated such that Ms Smith's moral culpability for the inability to control that impulse may be sustainably reduced.

2. The last remark of Gaegler J is apposite in this case, although Ms Smith's mother's substance issue appears to have been heroin, rather than alcohol. Nonetheless, Ms Smith's childhood was significantly impacted by her mother's heroin addiction, and this was combined with family violence in the homes Ms Smith resided in. These factors, in my view, have had a similar impact as described in Bugmy v The Queen (2013) 249 CLR 571, (see also the Bugmy Bar Book).
3. Of course, where an offender's history has contributed to a lack of impulse control, in sentencing, the need for community protection, as a sentencing consideration, may be increased (see Bugmy at [44] and [45]).
4. The application of the 'Bugmy principles' is not discretionary: Hoskins v R [2021] NSWCCA 169 per Brereton JA at [56]; R v Irwin [2019] NSWCCA 133 at [3]; Lupton v R [2024] NSWCCA 29. In Hoskins, Brereton JA observed:

The principle is that social disadvantage may reduce an offender's moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations, arising from the circumstances of social disadvantage.

5. In this case, much of what is known about the defendant's background is self-reported (either to the court or the psychologist), but it is not contradicted and can, in my view, be relied on in Court: Lloyd v The Queen [2022] NSWCCA 18 at [45]; Talukder v Dunbar [2009] ACTSC 42; (2009) 194 A Crim R 545 at [24]; Hall v Pendelton [2015] ACTSC 205 at [14].
6. Although there was some debate about the necessity of establishing a link between childhood deprivation and the impact on the moral culpability of a person in a particular instance of criminal offending, in Dungay v R [2020] NSWCCA 209 at [153], Bell P (as his Honour then was) stated:

...the absence of such a link does not mean that the Court does not give full weight to a childhood of profound deprivation if that is established on the evidence.

7. Further, in Lloyd v The Queen at [27], McCallum J (as her Honour then was) (Hamill and Cavanagh JJ agreeing) stated:

The prevailing view appears to be that it is not necessary to establish the existence of a causal connection with the offending before having regard to Bugmy factors.

8. In appropriate cases, the application of 'Bugmy principles' has moderated deterrence in favour of rehabilitation: IS v R [2017] NSWCCA 116.
9. In my view, the moral culpability of Ms Smith was substantially reduced by her disadvantaged background and exposure to domestic violence against her mother, aunty and herself as a teenager. This offending was impulsive, in the sense described in Hoskins, albeit not momentary. Ms Smith had, to some degree, put herself in a situation where there was the potential for strong emotional reactions given her history of abuse and the nature of work providing sexual services, especially where she had decided to drink alcohol. However, in circumstances where there is no indication of prior resort to violence in an such an emotional circumstance, her conduct should be properly understood given her history of trauma. In my view, and based on the careful analysis of Ms Edwige, her moral culpability was significantly reduced by virtue of her disadvantaged upbringing.

1. Ms Smith acknowledged that she had been drinking on the night.[5] In cases where a person became addicted to a drug at a young age where it is unlikely that the addiction was a matter of choice but was attributable to another event that Ms Smith was not primarily responsible for, then than addiction may be taken into account as a subjective factor that mitigates sentence: R v Henry [1999] 46 NSWLR 346 per Wood CJ at [273] with whom Spigelman CJ agreed at [201], see also Douglas v The Queen (1995) 56 FCR 465. It is clear from authority that this will not always be a mitigating factor and is a matter for assessment in the circumstances of a particular case: Hayek v R [2016] NSWCCA 126 at [75] and [80].
2. Ms Smith's account in this case is that she had not been an alcoholic for a period of years, and generally abstained from alcohol, but in the context of 'trial' employment, she consumed alcohol. Her use of alcohol, at least historically, was, in my assessment, in the context of social disadvantage, poverty and occurred against a history of abuse and neglect. However, this is not the typical case where an offender commits a crime when they are in the throes of a substance addiction which commenced at a young age. Ms Smith had not been an alcoholic for some years. She did consume alcohol, but this was not a habitual pattern at the time and it appeared unusual for her to be drinking.

1. If an offender has 'a mental illness, intellectual handicap or other mental problems' this may be taken into account in sentencing: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]; R v Verdins [2007] VSCA 102. A person's mental condition can affect the weight to be given to general deterrence, retribution and denunciation as well as reducing a person's moral culpability: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354. A person's moral culpability will be reduced particularly if their mental condition contributes to the commission of the offence in a material way: Skelton v R [2015] NSWCCA 320 at [141].
2. R v Verdins [2007] VSCA 102 ('Verdins') sets out a non-exhaustive list of ways in which an offender's impaired mental functioning may reduce their moral culpability. The case has been adopted in the ACT in R v BS-X [2021] ACTSC 160 at [95] (although see also DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]). These Verdins principles have been summarised as follows:

The condition may reduce the moral culpability of the offending conduct, as distinct from Ms Smith's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. > > The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. > > Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by Ms Smith, and the effect of the condition on the mental capacity of Ms Smith, whether at the time of the offending or at the date of sentence or both. > > Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by Ms Smith, and the effect of the condition on the mental capacity of Ms Smith, whether at the time of the offending or at the date of the sentence or both. > > The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on Ms Smith than it would on a person in normal health. > > Where there is a serious risk of imprisonment having a significant adverse effect on Ms Smith's mental health, this will be a factor tending to mitigate punishment.

3. In DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [178], McClellan CJ stated:

... the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence.

4. These principles have application to every case where there is a relevant mental condition, but there is some discretion in their evaluation in the context of a particular case: Blake v R [2021] NSWCCA 258 at [42].
5. The court must have some proper information before it to consider the application of these principles in a particular case. In Verdins, the Court said, at [8]:

There may be differences of expert opinion and diagnosis in relation to the offender. It may be that no specific condition can be identified. What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time [emphasis added].

6. In this case, the report of Ms Edwidge addresses some of these criteria, in particular Ms Edwige's opinion that Ms Smith's moral culpability was reduced in that her judgment was impaired and that she could not fully appreciate the wrongfulness of her actions. The conclusions of Mr Edwige are relevant also, to the requirement for the sentence to provide avenues for supervised therapeutic requirements.
7. In my view, based on the mental condition of Ms Smith, which is necessarily entangled to some degree with her disadvantaged upbringing, the need for general and specific deterrence is significantly moderated. She is not a good candidate to send a message to the community as the factors which contributed to her offending are substantially rooted in her mental health issues and disadvantaged start in life.

1. Section 17 of the Crimes (Sentencing) Act 2005 (ACT) provides that the court may, after an offender is found guilty of an offence either dismiss the charge or make a good behaviour order without convicting the person. Section 17(3) provides:

(3) In deciding whether to make a non-conviction order for Ms Smith, the court must consider the following:

(a) Ms Smith's character, antecedents, age, health and mental condition;

(b) the seriousness of the offence;

(c) any extenuating circumstances in which the offence was committed.

1. The court may also consider anything else the court considers relevant.
2. A conviction is the ordinary consequence of a finding of guilt: Balthazaar v The Queen [2012] ACTCA 26 at [53]. The recording of a conviction is a 'formal and solemn act' to mark disapproval of Ms Smith's wrongdoing by society and the court: Vuolo v Fall [2023] ACTCA 33.
3. To consider the exercise of the discretion not to record a conviction, Mossop J has observed that the offence need not be a trivial one: R v FI [2017] ACTSC 190 at [27]. In R v Ingrassia (1997) 41 NSWLR 447 at [449], the Court said:

The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a Court. As Windeye J said in Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 at 269 "a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice."

4. In Proud v Sladic [2014] ACTCA 26, the Court (Murrell CJ, Ross J and Walmsley AJ) considered the operation of s 17 of the Crimes (Sentencing) Act 2005 (ACT) including where an offence is one where the sentence must, given the nature of an offence, give weight to general deterrence. The Court said (at [39]):

'Extenuating circumstances' have been said to mean circumstances which 'excuse in some appreciable degree the commission of the offences or lessen the appellant's guilt.'

5. Section 17 of the Crimes (Sentencing) Act 2005 (ACT) confers a wide discretion: Armstrong v Saddler [2024] ACTSC 263. But as Baker J stated in that case, 'whilst a good behaviour order may achieve a measure of punishment, deterrence, and denunciation, it remains the case that the ability of a sentence to achieve those purposes will be eroded to some extent if a conviction is not ordered' [at 53].
6. For the court to consider proceeding to sentence without recording a conviction, 'cogent and compelling circumstances' are required: Vuolo v Fall [2023] ACTCA 33 at [37].
7. In considering sentencing a person pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT), the Court must not treat s 17 as a 'first offenders' provision in that a lack of prior criminal history is not itself a sufficient basis to deal with an offender; Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 at [49]; DPP v Chen [2023] ACTSC 154 at [61]

1. The submission on Ms Smith's behalf is that the recording of a conviction may adversely affect her ability to be a kinship carer for a 14-year-old girl in her care (who she cares for together with her two biological children). That child has been in Ms Smith's care for approximately 12 months.
2. Ms Smith has provided a letter of support from Cyndy Newman, Case Manager, Gugan Gulwan Youth Aboriginal Corporation. It states that the family has been working with that organisation since 13 May 2024. The letter records that Ms Smith 'and her children have been engaged in building positive relationships and personal goals.' It states that '[i]f the outcome of the court appearance should be a conviction, this would be detrimental on the children's wellbeing and safety.' While it assists the court to understand the connection between Ms Smith and that organisation, it is not clear why the author opines that a conviction would be detrimental. It is trite to say that sentencing is a matter for the court.
3. Ms Smith also provided a letter from Jiayue Yuan, Case Manager, Barnardos Australia. Jiayue Yuan is a Kinship Case manager and records that Ms Smith is the primary carer for a child in the 'Out-of-Home' care system. It records that Ms Smith is currently undergoing a carer assessment process. Jiayue Yuan states that stability and suitability are key considerations when placing a child and that 'the outcome of [Ms Smith's] court matter may have an impact on her ability to continue providing care for this child.'

1. Section 33(1)(B) of the Crimes (Sentencing) Act 2005 (ACT) provides that the Court must consider, if relevant and known:

(o) the probable effect that any sentence or order under consideration would have on any of the offender's family or dependants...; and

(r) whether the recording of a conviction or the imposition of a particular penalty would be likely to cause particular hardship to the offender

1. In DPP v Moala (No 3) [2023] ACTSC 306 at [47]- [48] McCallum CJ referred to a history of case law in the ACT and concluded that hardship to third parties does not have to be exceptional before it is taken into account in sentencing; see also Fares v DPP (No 2) [2025] ACTCA 2 McCallum CJ, Baker and Taylor JJ.
2. In this case, Ms Smith submits that any conviction in this matter may have an impact on her role as a kinship carer to the 14-year-old in her care. The letters provided link a conviction in this matter with an impact on the safety and wellbeing of children.
3. It is said that Ms Smith is currently involved in a carer assessment process. There is little specific detail provided about that process to this court. The carer assessment process may involve an application for registration under the 'Working with Vulnerable People' ('WWVP') scheme. The issue of a WWVP is governed by a statutory regime designed to protect children and vulnerable people. Section 24 of the Working with Vulnerable People (Background Checking) Act 2011 (ACT) defines criminal history as including 'any conviction of or finding of guilt against a person for a relevant offence.' The scheme casts a wider net than merely catching matters where a conviction is recorded and can require a risk assessment by the relevant commissioner. Further, the Working with Vulnerable People (Background Checking) Act 2011 (ACT) draws a distinction between kinship care activities, and other types of activities.
4. Ultimately, the ramifications of recording a conviction on her assessment for suitability as a kinship carer are far from clear. This court would be speculating to anticipate any particular outcome and cannot be satisfied that the 'probable effect' of recording a conviction would be a detrimental effect on the child in her care, or there are any particular hardships the Court ought to take into account.
5. Ultimately, this court must consider the appropriate penalty for the criminal charges. It cannot speculate about the impact of such a conviction in other arenas. As Baker J stated in Armstrong v Saddler [2024] ACTSC 263 at [59] 's 17 should not be employed so as to circumvent the operation of legislative provisions designed to protect the community, such as provisions which preclude persons with convictions for offences from holding positions of authority in a corporation or working with vulnerable persons.'

1. The Elders' hearing panel reached a consensus view was that Ms Smith would benefit from some treatment in relation to her history of abuse and her mental health. The Elders were concerned that Ms Smith had made decisions which had resulted in her being in an environment she ultimately found psychologically unsafe. The Elders considered the healing work that Ms Smith was currently engaged with, and the role she played as a kinship carer to a teenager. Their view was that she could, if properly supported, play an important role in assisting the young people in her care, but that Ms Smith should remain involved with culturally appropriate services, like Gugan Gulwan to ensure that each member of the family is supported. This would also provide a service where she was supported so that her history and mental health issues did not surface in times of stress, though this was also likely to involve specialist support for mental health. The Elders were not of the view that Ms Smith ought to be sentenced by recording a conviction but that for a lengthy period she should be supervised to maintain therapeutic services.

1. The decision about sentence must be proportionate to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R at [37] as cited in R v Lindsay [2020] ACTCA 25 at [32]. The seriousness of this offence, and the impact on the victim, provides cause for close consideration about whether the recording of a good behaviour order can properly achieve the sentencing purposes in this case. This was not a momentary lapse of judgment, nor was the impact on the victim trivial. In fact, it has been ongoing.
2. A good behaviour order can, to some degree, achieve the sentencing purposes of deterrence, denunciation and punishment: Armstrong v Saddler [2024] ACTSC 263 per Baker J at [42]. In addition, a good behaviour order can assist in achieving the rehabilitation of an offender.
3. Rehabilitation is an important sentencing consideration in a case like this, where there is limited criminal history and where there have been significant issue of disadvantage and deprivation in Ms Smith's history which have a bearing on her moral culpability. As the Courts have acknowledged in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:

Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.

4. I have had regard to Ms Edwige's opinion, and the relatively limited history, and in my view, if certain supports are in place for Ms Smith, her prospects of rehabilitation are good. She is a person who has not recorded as having any prior acts of violence as an adult. She has a work history and cares for three teenagers. She has taken a 14-year-old girl into her care voluntarily and this indicates a desire to contribute to the community and assist others. She appears to be otherwise law abiding, having given evidence against a previous partner in Court and encouraging the teenager she is now caring for to report historic abuse to the Police. These factors, especially given her disadvantaged upbringing and its effect on her, are significant in assessing her character and prosects of rehabilitation.
5. Ultimately, and after anxious consideration, in my view the combination the matters considered in this decision, especially the reduction in Ms Smith's moral culpability due to principles about the impact of her disadvantaged upbringing and Ms Smith's mental health, are cogent and compelling reasons which justify this Court proceeding to sentence without recording a conviction. I had had regard to the extenuating circumstances surrounding the offence given her motivation of attending at Langtrees and history of sexual and family violence offending.
6. Ms Smith's conduct was a serious example of a common assault, with unfortunate and unacceptable consequences for the victim. Notwithstanding these factors, to properly reflect the matters in mitigation and to achieve the sentencing purposes, in my view, it is not necessary to record a conviction.
7. For the above reasons, the following orders are made:

(1) In relation to the assault charge (CAN 2024/3605), Court will sentence, without recording a conviction, pursuant to s 17 Crimes (Sentencing) Act 2005 (ACT), to a good behaviour order for a period of two years with conditions that:

(a) she is to be subject on probation to the supervision of the Director-General of Corrective Services or delegate and obey all reasonable directions of that person for a period of twelve months, or such lesser period as deemed appropriate by the supervising officer;

(b) she is to report to the Corrective Services Court Duty officer immediately

(c) she is to attend such educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed, particularly in relation to / such as trauma, safe relationships and mental health.

(2) In relation to the charge of remaining in or re-entering the vicinity of premises, (CAN 2024/3606), Ms Smith is placed on a non-conviction good behaviour order, pursuant to s 17 Crimes (Sentencing) Act 2005 (ACT), for a period of 12 months, without any additional conditions.

(3) In relation to the charge relating to destroying or damaging property (CAN 2024/6556), Ms Smith is placed on a non-conviction good behaviour order, pursuant to s 17 Crimes (Sentencing) Act 2005 (ACT), for a period of 12 months, without any additional conditions.

I certify that the preceding 110 numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Magistrate Burt

[1] Transcript 29/10/2024 p 8 lines 36-37

[3] See also Transcript of 29/10/2024 at line 36-41

[4] This was not corroborated by the Brief Mental Health Report and is acknowledged as an error. Ms Edwige provided confirmation that this did not affect her conclusions, and no party has sought to illicit evidence from her.

[5] Transcript of 29/10/2024 p 9 line 42