The cultural upbringing of an east African mother has been put forward by a defence lawyer as a mitigating factor in sentencing her on a plea of guilty to assaulting her eldest child in Darwin local court Wednesday.
The charges stem from four incidents last year that were brought to the attention of authorities after mandatory reporting at the boy's school.
While the agreed statement of facts to each incident were not read out, and the charges not published in the daily court listings, The Mango Inquirer understands the case details were not formally suppressed.
We did decide to limit certain details, in-line with the court's approach on this one.
Defence barrister Thelma Gray started: "She is a 40yo female from Tanzania. It is known to be one of the poorest countries in Africa.
"Discipline in the family, as in most families in that part of Africa, is dealt with by the females.
"She comes from a religious background, but is also driven by cultural normatives as well.
"Understanding the dynamics of the African situation, is that physical discipline is the cultural norm, and in fact it is often the case where children are taken to the local police station to be disciplined by the police, and the parents are given guidance how to physically discipline their child."
The mother loss custody of her 11yo for four weeks through Territory Families, after the boy went to school with "badly bruised" fingers and told a teacher he couldn't do his schoolwork.
The defence barrister provided more of her client's background, coming from Tanzania 2013 with her husband "for a fresh start and to improve their lot in life".
"In my respectful submission, what she learnt as a child and how you deal with a situation will stay with you.
"This situation came to a head, and was noted in the Territory Families document; the child was provided with a computer for his schoolwork.
"The cousin noticed that he was sending naked pictures of himself to people he had met online.
"The mother confronted him. He denied it. She pointed out the cousin had provided photographic proof of what he was doing, and he continued to deny the behaviour.
Judge Therese Austin said: "If I accept that the Snapchat incident was about sending inappropriate material for an 11yo or any child, as opposed to the mum being concerned him using Snapchat, given his young age; a lot of parents have problems with their child using Snapchat. Especially young kids.
"There also might be a cultural concern, or family concern regardless of culture or regardless of upbringing with young children on Snapchat.
"Introducing computers to young children, which is the norm in schools now, does create social media use, which isn't potentially supported in the family home, and isn't part of their parental consent.
"They don't want their children on social media and yet this device comes into the home under the auspices of educational requirement.
"Let's imagine that I accept, and I don't know whether I will, that the images this 11yo child was sending were naked images and not just communicated on Snapchat, which might have been enough for mum to get upset.
"It's a really big assertion that an 11yo is sending naked images of himself.
"I can understand why mum was so upset, but the second incident has nothing to do with Snapchat. It's just mum losing her temper and over-disciplining her child."
"The first incident sounds like she's using the computer to justify the conduct, whereas the second incident demonstrates this was a place of corporal punishment."
- Judge
"We have criminalised excessive use of physical punishment in Australia in most jurisdictions because there is always a potential that when a parent is angry with a child, any application of force has the potential to go too far, because it hurts the child.
"That's why the criminal law now says there are better ways to discipline children, and physically applying to them is dangerous because you can hurt them."
Defence barrister: "It is noted in the Territory Families report that my client did say to them, tell me a better way of disciplining my child, so that's in the document".
Judge: "The second occasion there is no real justification for any application of discipline or punishment, except if it's in the context of what you say, is an entrenched norm in herself from her background and upbringing.
"Now I appreciate that. I do. I don't think it justifies that, but it certainly explains it. It's a reality. It's not something that I can ignore.
"What I must do is take it into account in order to determine as you want me to do, whether or not there are prospects for your client to understand that this is not the way to go with a young child, and she has another one.
"It doesn't mean she's not a caring and loving mother. She just needs to understand it won't be accepted or tolerated."
Defence barrister: "She has done two anger management courses."
The judge talked more about disciplining children: "It's actually perverting exactly what she's wanting to do, which is wanting him to be a good boy. 11yo's are not bad. Children are not bad because they don't clean their room, and don't do what mum wants.
"There's a lot of social anxiety and pressure to have children be these perfect little people. Well they're just not. They're not perfect little people.
"They won't clean their room when you ask them to do it. They do want to go outside and play, and Australia is a particularly permissive type of society. He'll want to do what his Australian friends are doing."
The defence barrister provided material on what the mother had done since the charges: "She has taken on board what she's been told by Territory Families. She has done two anger management courses. She has done a parenting course.
"There are three supporting [reference] letters for her."
The judge talked further about anger management and the issues parents face with discipline, as a parent herself: "You know what the real issue is? Sometimes there are stresses that have nothing to do with the child.
"The child is the person who bares the brunt of the parent's stress.
"Is it really my little boy who is 11 that is the problem in this situation. That's what an anger management course is mean to do."
The defence provided further information on their client: "As you can see up the back of the court, your honour, my client is supported by members of the Tanzanian community as well.
"As I noted earlier your honour, the child was returned after four weeks from a TPO from Territoriy Families, and the youngest child was never removed.
"She is on a bridging visa, and looking forward to getting a permanent residency.
"She will lose her employment, or she won't be eligible for an ochre card. We've dealt with the initial attempt to remove her ochre card, by asking for it to be held in abeyance, pending the outcome of these matters.
Judge: "It's not the conviction, it's the guilt. Is it?"
Defence barrister: "Yes it is.
"She does have a fallback situation of being an accountant to be able to obtain employment in book-keeping accountancy.
"Your honour, I note that these do carry a jail term. The aggravated assault carries a maximum of five, and 1881 carries a maximum of one.
"We're asking that your honour use your discretion and have her a CCO (community corrections order).
Judge: "They're all five year maximums."
The judge and defence discussed which charges carried what penalties.
Defence barrister: "Based on her previous good behaviours, we ask for a CCO of a year.
"We're not resisting convictions. I would like to, but.."
Judge: "If there was one incident."
The Mango Inquirer was not in a position in the court where I could hear nor record a single thing the prosecution said, unfortunately.
One of the reference letters were brought up by the second prosecutor as not referring to the charges, but was just a personal reference, however the other two did, with the judge giving them more weight.
Defence barrister: "If she does get a term of imprisonment, it will impact on her obtaining permanent residency."
Judge: "You're relying more on the hardship argument for her being the primary caregiver and sole-supporter of these children.
The judge again addressed it not being the case of a one-off, before starting her sentencing remarks.
We've only published some of it, as much has already been discussed.
Judge Austin: "This is a serious incident where [name] did assault her 11yo child on the 1st and 21st of March and twice on the 15th September.
"You have pleaded guilty. It is a plea I am taking at a very early time. You have no criminal history at all.
"I do have material before me that you are somebody that does contribute to the community in a real way.
"I'm also told that you came to Australia with your husband and one child, and since that time you worked very hard.
"You worked very hard to improve your circumstance. You did get qualified with your accounting. You did work interstate for three years, then you moved to the Northern Territory in an attempt to make your family better, but you couldn't work as an accountant, but you studied again and got your masters, then you had to change your career.
"You had to work in the health sector as a support worker. You got more qualifications. You worked in the disability sector. That is a very important role.
"You worked fulltime for a long time, while raising two children.
"In relation to these incidents, I have no evidence before me that even if you did discipline your children physically before that, you've ever over-corrected and gone too far, and hurt your little boy the way that you did on these occasions, and that's important.
"In Australia, as in some other countries right now, it is a criminal offence to hurt your children.
"If you're going to correct them doing physical discipline, you can do it, but you're not allowed to hurt them.
"If you over-correct as an adult parent or caregiver, you can be charged with a criminal offence.
"In Australia now, the world has changed. Parents are not encouraged to physically discipline their children, even if the law says they can, they are really not encouraged to do so.
"I do appreciate in other countries that may not be the case.
"I've been told in Tanzania where you were born and raised, that physical discipline of children is how parents raise their children, and I accept that, because that's how you were raised.
"It is something I take into account when I consider how you responded when you were faced with the first situation involving your child in March last year, when you found that he was sending inappropriate content using his school computer.
"You overreacted and you did discipline him. I do find that is was discipline, as opposed to deliberately wanting to assault him. You overreacted and hurt him.
"And I do accept what the crown says that objectively it was also very humiliating for him to be put in the situation that he was. As a very young boy.
"Anybody in those circumstances, when you used the skipping-rope and the wooden spoon in March. Parents often act out in anger.
"On the other occasion, likewise, you wanted him to do his household chores, but you went too far.
"You hit him with a wooden spoon on his hands on two occasions that day, and you bruised him badly.
"He went to school and the teachers noticed, because he said I can't actually do my schoolwork because hands are hurting, and that's how this whole thing kicked off.
"You paid a big price. Your little boy was removed for a period of time. It must have been very painful and stressful and worry for you.
"I do find that you have put in quite a bit of effort, whether you had to or wanted to, you have been [inaudible] of any belief that you were doing the right thing, because you weren't.
"I also believe that if you really love and care about your son, you will change your behaviour. This court will make sure today that you will change your behaviour.
"I will not impose imprisonment today, because there are circumstances that allow me to avoid it, but it's not a precedent.
"It's only because in this case there's significant mitigation that allows me to avoid it, including, being the primary caregiver.
"The fact that you are going to lose your employment, I believe you will have your ochre card removed.
"You are convicted on counts one, two and three. I am going to impose a 12 month community corrections order."
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