An ACT magistrate has made the extraordinary claim that she can no longer protect Canberra children from parents who hit them because a decision handed down in a superior court has tied her hands.
However, a Supreme Court judge has found that Magistrate Bernadette Boss's assessment of the issue is off the mark.
A judgment published on Wednesday reveals that a mother, referred to as IA, appeared before Dr Boss in the ACT Magistrates Court for sentence in June.
The woman had pleaded guilty to assault occasioning actual bodily harm after bruising her 11-year-old son by punching him in the back, slapping his face and pinching his left arm several times in response to the boy's misbehaviour.
During the sentencing, IA's solicitor James Maher asked for a non-conviction order and tendered the ACT Supreme Court decision in the case of ZL to lend support to his argument.
In that case, where a mother bruised her 7-year-old son's back with a shoe for being disobedient, Justice Chrissa Loukas-Karlsson set aside the suspended jail sentence imposed by Dr Boss.
Justice Loukas-Karlsson found that the suspended jail term was a "manifestly excessive" penalty for ZL, who had suffered an "uncharacteristic lapse of judgment".
ZL was resentenced to a good behaviour order without conviction.
When Dr Boss came to examine that decision while sentencing IA, she commented: "OK, 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."
The magistrate went on to question how she could protect a child in the ACT, saying: "My hands are tied. I'm virtually forced into a [non-conviction order] in this case."
"I feel my hands are completely fettered," Dr Boss said.
"A child in this jurisdiction can be assaulted and actual bodily harm can be occasioned to them, and that is still not serious enough to be beyond a [non-conviction order] when a parent is at the end of their tether."
Dr Boss said her initial inclination was that people who assaulted and injured children should always be convicted, but the injuries inflicted by IA were not quite as serious as those occasioned by ZL.
Given that ZL had received a non-conviction order on appeal in a superior court, Dr Boss believed she had no choice but to hand one to IA because she was "bound by not only issues of precedence but also the principle of parity".
"I am of the view that I am no longer in a position to protect children in this territory, frankly, as a result of [the ZL] decision," she said.
"... I think it's an amazing situation. Absolutely amazing. I'm amazed."
Prosecutors recently appealed against the severity of the sentence imposed on IA, arguing the non-conviction order was "manifestly inadequate".
And while Supreme Court judge David Mossop dismissed the appeal last week, he found that Dr Boss had approached the issue in the wrong way.
In his judgment, Justice Mossop said while Dr Boss was required to take the resentencing of ZL into account, it did not constitute a binding precedent and merely formed part of a pattern of sentencing that illustrated the options available.
The judge also determined that Dr Boss had misapplied the principle of parity, which was irrelevant in the sentencing of IA because it applied only to co-offenders charged as parties to the same criminal activity.
Notwithstanding those errors, Justice Mossop found that in the circumstances of IA's case, a non-conviction order was still an appropriate sentence and the penalty should therefore not be disturbed.
He said it was relevant that IA was under significant stress at the time of the offending, and that she had since completed counselling and a parenting course.
The woman's son had repeatedly misbehaved at school and was at one point suspended for strangling another child, Justice Mossop said.
She had also been "effectively homeless" and living in temporary accommodation for a significant period around the time in question.
Justice Mossop said IA's house had burnt down and when she was due to move into another home, that place had flooded.