A Canberra magistrate has said that her hands are tied in this jurisdiction when dealing with parents who hit their children, after one of her decisions was overturned on appeal.
She had imposed a conviction on a mother who hit her seven-year-old son with a shoe after he lost some of his toys, leaving him with “significant” bruising.
But Supreme Court Justice Chrissa Loukas-Karlsson set aside Dr Boss’s decision, re-sentenced the woman under section 17 of the Crimes (Sentencing) Act 2005, and did not record a conviction.
Magistrate Dr Bernadette Boss’s comments about the case came to notice this week when another offender was being sentenced for an assault on an 11-year-old child.
The offender’s solicitor asked for a non-conviction order and tendered in support the ACT Supreme Court’s appeal decision by Justice Loukas-Karlsson, and relying on the precedent created by the first case.
During the sentencing hearing, Dr Boss made clear her exasperation at what she believed to be the limitations placed on her as a consequence.
She believed that she could not impose a conviction in light of the previous case, saying it had set the bar for what was required.
”Okay, children are clearly not to be protected in this jurisdiction and I know I’ll probably get into trouble for making that remark but I find that absolutely remarkable in the extreme.
“I don’t know what I’m to do frankly. I can’t protect children in light of that decision. How can I protect a child in this jurisdiction?” Dr Boss told the sentencing hearing.
”How can I protect a child in this jurisdiction after that judgment? My hands are tied. I’m virtually forced into a section 17 in this case.”
Dr Boss said she wished Justice Loukas-Karlsson would sit in on family violence cases in her court.
”With all due respect to her Honour, I wish she would come and sit in the family violence list and with all due respect to her Honour – I wish to grip this – that she hadn’t made a decision in those terms because my hands are effectively tied,” she said.
”I think it’s an amazing situation, absolutely amazing. I’m amazed. I can’t go further than that without being disrespectful and I have no intent or desire to be disrespectful but I find myself in a position whereby as a result of that decision, how can I refuse a section 17?”
She believed that even if there had been bruising, she could not convict.
“This is the bar that has now been set. If you hit children with a shoe or with your hand and you cause bruising, this is the standard that has been set. This is the level,” she said.
Dr Boss had made a non-conviction order and imposed a good behaviour order for 12 months. But the prosecutor appealed, contending that the sentence was manifestly inadequate.
Justice David Mossop, while finding the sentence correct, said in his judgment that Dr Boss erred in believing that she was bound by precedent because Justice Loukas-Karlsson was simply exercising her discretion, which was also available to Dr Boss.