of blood. I remember I felt dizzy for about a week later. Because the right side of my mouth was sore I had to chew my food on the left side and it hurt when I moved my mouth. The smaller cut hurt when I moved my eyes. Now I have an ugly raised scar on the right side of my face and it makes me feel shame. Everyone asks me what happened to cause the scar. ... The smaller scar isn't quite as noticeable, because my hair covers it. Even now the big scar sometimes pains me, maybe there is still a piece of glass inside. It is a sharp pain and I rub the scar and it goes away. Sometimes when the children press down on the scar it hurts. I had the stitches out about three days after Pollyanna slashed me and this hurt a lot. When the stitches were in I could only speak a bit, but I could talk okay when they came out. I am thinking of going back to the doctor because my scar still hurts." 6. As both parties have lead fresh evidence which was not available to the learned magistrate, the appeal is no longer to be resolved by reference to the standard test of whether it has been demonstrated that the learned magistrate fell into error. The issue now is, whether on the evidence before the learned magistrate and before me, the conviction should stand. In determining that question, this Court is exercising original and not appellate jurisdiction and my function is to form my own independent opinion of the evidence on the material put before me, and to give judgment as if I were sitting as a court of first instance: see Seears v McNulty (1987) 28 A Crim R 121 at 127-28 per O'Leary CJ. 7. The first question is whether on the evidence the victim suffered "bodily harm." The Criminal Code, s1 defines "bodily harm" as follows: "In this Code, unless the contrary intention appears - "bodily harm" means any physical injury that interferes with health." 8. This is to be compared with the definition of "grievous harm" as follows: "'grievous harm' means any physical or mental injury of such a nature as to endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health." 9. The differences between the two definitions are (1) that in the case of grievous harm, the injury to health must be permanent or likely to be permanent, whereas, to amount to bodily harm, the injury to health need not be permanent (2) a mental injury may amount to grievous harm but not to bodily harm (3) in order to amount to bodily harm, the physical injury must "interfere with" health, whereas in the case of grievous harm, the injury must be "of such a nature as to cause or be likely to cause" permanent injury to health. Both definitions use the word "health" which is not defined by the Code. The word "health" is to be given the same meaning in both definitions unless there is reason to do otherwise: Registrar of Titles (WA) v Franzon and Ors [1975] HCA 41; (1976) 50 ALJR 4 at 6 per Mason J; Craig, Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; (1915) VLR 450 at 452 per Hodges J. The word "health" is in each case part of a compound expression, and this may be a sufficient reason. 10. The words "grievous harm" appear in a number of sections of the Code, i.e. ss20(3),27,28,34(1)(f),34(3)(d),40(2),50,70, 154,160,162,177,181,185 and 192. The words "bodily harm" appear in ss177,182,186,188 and 192. In two sections, i.e. ss 177 and 192, both expressions appear. Section 177 provides: "177 ACTS INTENDED TO CAUSE GRIEVOUS HARM OR PREVENT APPREHENSION Any person who, with intent to disfigure or disable any person, or to cause grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person - (a) causes grievous harm or bodily harm to any person by any means; (b) attempts in any manner to strike any person with any kind of projectile; (c) causes any explosive substance to explode; (d) sends or delivers any explosive substance or other dangerous or noxious thing to any person; (e) causes any such substance or thing to be taken or received by any person; (f) puts any corrosive fluid or any destructive or explosive substance in any place; or (g) casts or throws any such fluid or substance at or upon any person or otherwise applies any such fluid or substance to the person of any person, is guilty of a crime and is liable to imprisonment for life." 11. Counsel for the respondent, Mr Roberts, submitted that s177 indicated that disfigurement could amount to "bodily harm," and therefore an interference with "health," even though the disfigurement amounted only to minor scarring of the body not otherwise interfering with the proper functioning of the body, but I am unable to see why this must be so. The legislature has not used the expression "bodily injury," but has instead used the expression "bodily harm" as to which it has given a defined meaning. As Gibbs J observed in Wacal Developments Pty Ltd v Realty Developments Pty Ltd [1978] HCA 30; (1978) 140 CLR 503 at 507, it is impermissible to construe a definition by reference to the term defined, and the special meaning given to the words must be applied whether or not it accords with the ordinary meaning. 12. I note also that the word "health" is used in two other sections of the Criminal Code, viz., ss183 and 184. 13. In Tranby (1991) 52 A Crim R 228, the Court of Criminal Appeal (Queensland) had occasion to consider the meaning of the word "health" as it appears in the definition of "grievous bodily harm" contained in s1 of the Criminal Code (Qld). That definition is as follows: "The term 'grievous bodily harm' means any bodily injury of such nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health." 14. That definition is very similar to the definition of "grievous harm" in the Criminal Code (NT). In Tranby, supra, the facts were that the appellant bit the complainant's left ear, severing a substantial portion of the lobe. He was convicted of doing grievous bodily harm. The severence did not affect the complainant's capacity to hear, and the only residual effect was a permanant cosmetic disability. The question arose as to whether that injury should be regarded as an injury to health, there being no question that the injury was not permanent. By a majority (Derrington and de Jersey JJ) it was held that such an injury was not an injury to health. There are some significant differences between the Criminal Code of Queensland and the Northern Territory Code which must be borne in mind when considering Tranby. Section 317 of the Queensland Code, which is the nearest equivalent to s177 of the Northern Territory Code set out above provides that: "Any person who, with intent to maim, disfigure, or disable, any person, or to do some grievous bodily harm to any person, or to resist or prevent the lawful arrest or detention of any person - (1) unlawfully wounds or does any grievous bodily harm to any person by any means whatsoever; (2) to (7) ... is guilty of a crime, and is liable to imprisonment with hard labour for life ..." 15. Subsections (2) to (7) are in para materia with ss177(2) to (7) of the Northern Territory Code, except that the word "unlawfully" is included in the provisions of the Queensland Code. There is no offence of unlawful wounding contained in the Northern Territory Code. Another difference between the two codes is in the definition of "bodily harm." The Queensland definition is "bodily harm means any bodily harm which interferes with health or comfort.". Derrington J to some extent relied upon the availability of the offence of unlawful wounding to the complainant in Tranby in concluding that "health" did not unambiguously mean an injury resulting only in a cosmetic disability. So far as the Northern Territory Code is concerned, it is open to debate as to whether the absence from the Code of an available alternative, other than a simple assault, favours one particular shade of meaning to be given to the word "health" over another. It could be suggested, for example, that the apparently deliberate omission from the definition of "bodily harm" of the words "or comfort" points to a more serious type of injury than that encompassed by the definition contained in the Queensland code. 16. The approach taken by Macrossan CJ, dissenting, was to consider the historical meaning given to the phrase "grievous bodily harm" as it appeared in a number of statutes. His Honour also seemed to be influenced in his interpretation of the word "health" by the context of that word in the definitions of "grievous bodily harm" and "bodily harm": see p232. Accordingly, His Honour preferred the definition "soundness of body" in the sense "unharmed, "free from injury" and "free from flaw, defect" etc. : see p233. With great respect, I am unable to accede to this approach. In the first place, it is a well-settled rule of construction that in the case of a code intended to replace the common law, its meaning is to be ascertained in the first instance by its language and the natural meaning is not to be qualified by considerations derived from the antecedent law: Brennan v The King [1936] HCA 24; (1936) 55 CLR 253 at 263; Bank of England v Vagliano Brothers (1891) AC 107 at 144-45; Mellifont v Attorney-General for the State of Queensland [1991] HCA 53; (1991) 173 CLR 289 at 309. Secondly, His Honour's approach is coloured by construing the definition by reference to the term defined, which as I have already said, is incorrect: Wacal Developments Pty Ltd v Realty Developments Pty Ltd, supra. 17. De Jersey J approached the matter by reference, not only to dictionary definitions of the word "health", but also by reference to a number of authorities that had considered the ordinary meaning of that word in various contexts. It is unnecessary to refer to His Honour's judgment in detail. He concluded, at 238-9: "I would not go so far as to limit 'health' to freedom from disease or ailment in the sense of sickness. To my mind, the ordinary sense of the term focuses on the functioning of the body, which of course may often be impaired by disease or illness. But functioning may also be impaired by, for example, deliberately inflicted injury. The American

decisions nevertheless provide some support for the conclusion that 'health' is not impaired by removal of a part of the body that serves no particular function with respect to the rest of it." 18. His Honour also concluded at 237: "Resort to the dictionaries confirms that a cosmetic disability with no consequence upon the functioning of the body does not involve impairment of 'health' as that word is ordinarily understood. The definitions of 'health' in the dictionaries focus on the functioning of the body." 19. In the end result, I accept Mr Roberts' submission that not much assistance is to be gained from Tranby because the injury to health being considered in that case was of a permanent nature, and I consider that I should distinguish Tranby on that ground and approach the matter afresh. As previously mentioned, the full definition of "bodily harm" is "any physical injury that interferes with health" and I consider that it is that composite phrase which needs to be considered rather than the word "health" taken out of context. Firstly, the statute uses the expression "interferes with," which I take in this context to mean "to affect adversely." Secondly, the interference need not be permanent, so that even a temporary interference is sufficient. Thirdly, the statute does not use the expression "results in bodily injury," although it might have done so. It seems to me therefore unlikely that Parliament meant to convey the meaning that a bodily injury, no matter how minor, is an interference with health, although this is a possible construction. The narrowest dictionary meaning commonly given to the word "health" is "soundness of body": see for example the Shorter Oxford English Dictionary, 3rd ed and the definitions referred to by De Jersey J in Tranby at 237-38; and "sound" is defined, for example, by the Macquarie Dictionary to mean "free from injury, damage, decay, defect, disease, etc."; and the definition of "sound" in the Shorter Oxford English Dictionary is to similar effect, viz., "free from disease, infirmity or injury." Mr Roberts urged that this was the meaning intended, but if this was intended, why give the expression "bodily harm" a defined meaning at all, and why not use the words "results in a bodily injury"? Moreover, the consequences of such a meaning do not seem to accord with the seriousness that the Code treats the causing of bodily harm. Section 188(2)(a) of the Code increases the maximum penalty for an assault, where bodily harm is suffered, from one year to five years' imprisonment. Section 186 of the Code imposes a penalty of five years' imprisonment for unlawfully causing bodily harm to another. Section 192(3) increases the maximum penalty for a sexual assault from seven years to fourteen years where bodily harm is caused. It is hard to see how an offence against s182 is likely if the intent is to cause only a minor injury, given that that section creates the crime of placing explosives in place with intent to cause any bodily harm. Further, only physical injuries can result in bodily harm, yet a mental injury, although temporary, can be far more devastating than a minor injury such as a bruise. Finally, I am not helped much by De Jersey J's observation that the definitions of "health" in the dictionaries focus on the functioning of the body. In one sense, even a minor bruise or a minor headache as a result of a blow to the head interferes to some extent with the temporary functioning of the body, although the body has the capacity to heal in such cases without the need of any medical assistance. I do not consider that in ordinary parlance, one could describe minor injuries, not requiring any medical treatment, as a temporary interference with one's health. On the other hand, an injury of such a kind that warranted seeking medical treatment may well fall within that description, although the fact that medical treatment was or was not sought would not be determinative of the matter. 20. Mr Howden, for the appellant, submitted that I should adopt the approach of Derrington J in Tranby, who held (at 236) that it was not possible to say that the injury in that case plainly and unambiguously was an injury to health, and, the statute being a penal one, any ambiguity should be resolved in favour of the accused. Although the definition of bodily harm presents difficulties of construction, I do not consider that I should follow this approach. In the end result, I consider that the question of whether the injury amounts to "bodily harm" is one of degree, which can only be decided by reference to the facts in each case. In determining this question, it is necessary to focus on the injury and its immediate consequences. The fact that the victim has been left with only a cosmetic disability is irrelevant if the immediate consequences of the injury interfered temporarily with her health. It is relevant also to consider the nature of any treatment received and whether any part of the body was unable to perform its functions fully, either as a result of pain or otherwise and there may well be other relevant matters. In this case, the victim did seek medical treatment, and a number of stitches were inserted to stem the flow of blood. The victim was also given painkillers, and she was in a distressed condition whilst at the hospital. She felt a lot of pain, and was dizzy for a week, her ability to chew food properly was interfered with for about a week, her ability to move her eyes was temporarily interfered with by pain, and her ability to speak normally was also temporarily affected. In these circumstances it seems to me that the assault did interfere with her health and therefore did result in bodily harm within the meaning of that expression in the Code, and I find accordingly. 21. I turn now to consider whether the penalty imposed by the learned magistrate was manifestly excessive. Mr Roberts, for the respondent, very fairly did not seek to rely upon the additional material tendered before me in order to support the sentence imposed. Nor did counsel for the appellant. This aspect of the appeal therefore falls to be determined in accordance with the well-known principles established by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5. 22. The circumstances of the offence were that on about 4 December 1990 the appellant was staying at Woodyards Camp a few kilometres north of Alice Springs. This camp is a place leased by the Tangantyere Council to provide a place for Aboriginal people to stay when visiting the town. The appellant is a twenty-five year old married woman, a member of the Warlpiri people, who normally lives at Yuendumu. She was not accompanied by her husband or children. The appellant was drinking with four other people, one of whom was the eventual victim of the assault. One of the other persons present, a woman called Deidre, accused the appellant of sleeping with her husband. The appellant denied this allegation vehemently. An argument ensued, and the appellant was "given a hiding" by Deidre and the eventual victim, the latter of whom struck the appellant with a rock to the head. The appellant was taken to hospital where she received some stitches. The appellant was angry and her pride hurt by what she considered to be was an unjustified attack based upon false allegations. The next day, 5 December, the appellant saw Deidre and the parties exchanged apologies. On 7 December the appellant went to the Institute of Aboriginal Development where her victim worked to speak to her victim about this matter, her intention being to invite her victim to go outside so that they could speak to each other privately. As she was about to enter the building, the appellant picked up a small piece of glass which was part of a broken bottle which she had found, her intention being, so it was submitted, in case she needed to protect herself. She entered the building and spoke to her victim who was on the other side of the counter. The appellant asked her why she had been assaulted, and asked her to come outside. The victim refused and a shouting match ensued, during which the appellant reached over the counter and slashed her victim across the face with the broken glass. The appellant was later arrested and made full admissions to the police. She was released on bail and ultimately appeared before the magistrate at Yuendumu where she entered a plea of guilty to the charge. 23. The appellant had grown up in Yuendumu and her first language is Warlpiri. She has an adequate grasp of English. She attended school to about year 9 or 10, and can read and write but not fluently. After leaving school, she married and there is one child of that marriage aged about seven or eight. Shortly after that child was born, her husband passed away and she thereafter remarried. There are three children aged five, four and three by her second marriage. At the time of the original hearing, her husband was employed full time as the Aboriginal Corrections Officer at Yuendumu earning about $500 per fortnight. He is now unemployed. The appellant is fully engaged in bringing up her children. The appellant has no relevant prior convictions and is, for all intents and purposes, a first offender. 24. It was submitted that the penalty imposed was manifestly excessive for a number of reasons, the first of which was that the appellant's children would have to be split up amongst the relatives as her husband has no experience in caring for young children. I am unable to give this factor any weight. Except in exceptional circumstances, the effect of a sentence on dependants is not a relevant factor: Adami and Adami (1989) 2 A Crim R 8. I do not consider the circumstances here to be exceptional. The fact that the dependants affected are those of a woman is not an exceptional circumstance: R v Wirth (1976) 14 SASR 291 at 293 per Bray CJ. 25. The next submission was that the assault was provoked in the sense that the appellant had herself been assaulted by her victim only a few days before. I accept that this places the assault in a different category than cases where the assault was carried out on a victim who had done nothing to deserve it, but on the other hand the courts should not be seen to encourage those who take the law into their own hands. Some three days had passed since the assault on the appellant. The appellant, it seems to me, carried out revenge on her victim rather than acting in the heat of the moment or at least within a short time thereafter. I am unable to give this submission any weight, and there is nothing to show that the learned magistrate viewed the assault as being one carried out upon an entirely innocent victim. 26. The next submission was based upon the observations of Walters J in Coles v Samuels (1972) 2 SASR 488 at 492 as follows: "In the absence of circumstances of substantial gravity surrounding a simple offence or a minor indictable offence committed by a first offender who stands to be punished for a single offence and who has no other offences to be taken into consideration, and in the absence also of a sufficient reason for sentencing him to a term of imprisonment, I am disposed to think that a reformative or a primarily deterrent sentence is scarcely indicated, and that the imposition of a fine, a release on probation, or a discharge on a suspended sentence should prima facie be adequate." 27. That was a case of common assault, whereas here the appellant had pleaded guilty, rightly as I have found, to an assault causing bodily harm, which is by virtue of the Code, a circumstance of aggravation to the assault increasing the maximum penalty from one to five years' imprisonment. I consider that the fact that a weapon was used, that there were two cuts to the face requiring eighteen stitches, does place the case into the category of one of substantial gravity. Even if the cuts were superficial without reaching subcutaneous layers of the skin and nothing further was known about the cuts other than the fact that the victim suffered some pain and suffering for a short time I would still consider the criminality involved to warrant the description "of substantial gravity." 28. In my opinion it has not been shown that the learned magistrate erred in any way in imposing a short custodial sentence. The relevant considerations are to be found in the observations of King CJ (with whom Mitchell J agreed) in Yardley v Betts (1979) 1 A Crim R 329 at 332-34, and in the observations of Bray CJ in Birch v Fitzgerald (1975) 11 SASR 114 at 116-17 to which I referred in Gadatjiya v Lethbridge (unreported, 28/2/92) and I will not repeat them here.The need for general and special deterrence, and to impress upon the community at large that such behaviour will not be tolerated, warranted the course taken by the court below. 29. Accordingly, the appeal is dismissed.