An Illawarra woman who was sentenced to 18 months in jail for beating her 11-year-old son and dragging him through broken glass has had her conviction overturned on appeal.
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The woman, who cannot be named for legal reasons, appealed the sentence and conviction that was handed down in Wollongong Local Court in December 2022.
Magistrate Gabriel Fleming sentenced the woman to 18 months in jail for assault occasioning grievous bodily harm and 12 months for contravening the terms of a court order and a common assault against the same boy.
The woman's lawyer, Renate Matyear immediately challenged the sentence in Wollongong District Court, with the woman released on bail pending her appeal.
In Wollongong District Court on Friday, Judge William Fitzsimmons overturned the lower court's decision, finding the weight of the evidence was not strong enough to find the woman guilty beyond reasonable doubt.
The prosecution had alleged that on November 21, 2020, an argument between the woman and the boy spiralled out of control after she asked for access to the son's mobile phone.
The prosecution alleged the son refused to give his mother the passcode, which sent her into a frenzy, slapping and kicking the boy, before grabbing him by the ankle and dragging him through broken glass in their home, leaving a cut on his hand.
The boy then later fled out through a window and climbed over the back fence to a neighbour, who noticed his injuries.
In her evidence, the woman said this was not what occurred, and that in fact she had sought to break up a fight between her son and another young child over an Xbox. The woman said she took the electronic devices from the children and this caused her son to become infuriated.
"I hate it here, I want to kill myself," the child then said.
The woman said her son then grabbed a kitchen knife, causing the woman to fear that he would hurt himself. The woman said she grabbed the boy by the waist, threw the knife in the sink and then smacked her son three times on his bottom.
Then the son left and went to the neighbour's address.
Judge Fitzsimmons said while both the woman and her son were believable in their evidence, the decision came down to the statements of corroborating witnesses. The neighbour, a GP and the boy's biological father gave evidence that the boy had injuries after the alleged incident.
"In the initial reporting of the incident, the evidence is no higher than the young person said that his mother had cut him, no further detail is provided," Judge Fitzsimmons said.
"The extent to which it provides any corroboration is extremely limited."
Judge Fitzsimmons said the notes provided by the GP could prove either the boy or the mother's version of events, as could the "generic" statement the boy provided to his father.
"There is no reason to disbelieve the appellant's evidence," he said.
Judge Fitzsimmons said the smacks, or "whacks" as the woman called them, did not amount to assault, and fell within the defence of lawful correction.
"[The woman] was confronted with an hysterical child who had made reference to killing himself. On her evidence the young child then retrieved a knife, she subsequently disarmed the child with the knife and following that smacked the child three times," Judge Fitzsimmons said.
"One can only begin to imagine the situation with which she was confronted."
Support is available for those who may be distressed. Phone Lifeline 13 11 14; Mensline 1300 789 978; Kids Helpline 1800 551 800; beyondblue 1300 224 636; 1800-RESPECT 1800 737 732.
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