Background
This case concerned the sentencing of a young mother for the offence of assault with intention to wound. The offender, Eve McLaughlin, had been in a long-term, violent relationship with her de facto partner, the complainant. Shortly after their separation, the complainant seriously assaulted Ms McLaughlin in her home. She refused to make a statement or have her injuries photographed and the police in turn laid no charges. The following day, Ms McLaughlin attempted to assault the complainant with a knife at his home. The complainant suffered no injuries. As a result of this incident, Ms McLaughlin was charged with, and subsequently pleaded guilty to, one count of assaulting the complainant with intent to wound him.
Decision
Justice Refshauge imposed a suspended sentence of six months imprisonment, subject to compliance with a two year good behaviour order, which included 50 hours community service and an 18 month probationary period.
Reasoning
His Honour considered four factors in determining the appropriate sentence:
Firstly, his Honour noted that Ms McLaughlin had pleaded guilty, but also considered this to be a marginal factor in her favour, given that she had pleaded guilty at a late stage – the first day of her trial.
Secondly, Justice Refshauge considered her young age, 21 years old, to be “a very relevant factor”. Justice Refshauge recounted her unfortunate history, including the negative impact of the early separation of her parents at eight years of age and her subsequent troubled relationship with them; her long history of hard-drug usage and subsequent addiction from the age of 14; and having two children during this time. In regards to the two children, both had been previously removed from her care due to her drug addiction.
Thirdly, his Honour noted as a favourable consideration that since the offence in question Ms McLaughlin had ‘turned her life around’. Justice Refshauge noted her successful rehabilitation from drug addiction, the subsequent return of one of her children to her sole care, and her establishment of a relationship with her other child.
Finally, his Honour considered as a relevant factor Ms McLaughlin’s role as a single mother to her youngest child, and her ongoing contact with her other child. Justice Refshauge determined this to be a consideration based on s 11 HRA and s 33 of the Crimes (Sentencing) Act 2005 (ACT). In considering the rights of the child, his Honour also noted a decision by the Constitutional Court of South Africa in M v The State [2007] ZACC 18, “namely that there is a right for the interests of the children to be taken into account even in cases of serious offences”.
Comment
This decision is notable in two respects. Firstly, in determining the appropriate sentence, Justice Refshauge appears to have used s 11 HRA to accord significant weight to the best interests of the offender’s children. The Convention on the Rights of the Child, to which Australia has ratified, also holds as a guiding principle that “[t]he best interests of children must be the primary concern in making decisions that may affect them” (Article 3). His Honour’s reasoning appears to have addressed a concern of the Committee of the Rights of the Child in its 2005 Concluding Observations on Australia:
28. The Committee recommends that the State party strengthen its efforts to ensure effective implementation of the general principle of the best interests of the child as enshrined in article 3 of the Convention in all legal provisions as well as in judicial and administrative decisions … that have an impact on children.
Secondly, it is noteworthy that his Honour used the South African case of M v The State [2007] ZACC 18 to support the consideration of children’s rights under s 11 HRA in sentencing decisions concerning even the most serious offences. Section 31(1) HRA provides that rights such as s 11 can be interpreted with the aid of foreign jurisprudence, so long as certain matters are first taken into account, including reliance on the “ordinary meaning of this [Human Rights] Act, having regard to its purpose and its provisions read in the context of the Act as a whole” (s 31(2)(a) HRA). Justice Refshauge had previously confirmed in Imran Hakimi v Legal Aid Commission (ACT) [2009] ACTSC 48] that (at 71):
[T]he process of identification of the content of rights enshrined in the Human Rights Act is properly to be assisted by the jurisprudence of international courts and tribunals, which consider the same or relevantly similar rights expressed in instruments similar to the Human Rights Act. |
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