The Queen v Ottaviano[1997] QCA 338

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 315 of 1997

Brisbane

[R. v Ottaviano]

T H E   Q U E E N

v

ARNOLD NORMAN OTTAVIANO

(Applicant)

Pincus JA

Moynihan J

Ambrose J

Judgment delivered 3 October 1997

Joint reasons for judgment of Moynihan and Ambrose JJ.  Separate reasons of Pincus JA. concurring as to the order made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 3 October 1997

I have read the joint reasons for judgment of Moynihan and Ambrose JJ.  The authorities to which we were referred suggest, in my view, that the sentence imposed was a high one.  It must be an unusual case in which a father’s attempt to impose his authority on his family by physical means, an attempt not resulting in any significant physical damage to those assaulted, produces a sentence at this level.  But the applicant’s motive was it appears a completely unworthy one:  he wished to establish or reinforce a rule that no members of his family were allowed to tell their relations about any event which happened within his family, at least when that event might possibly reflect discredit on the applicant.  Further, the applicant’s daughter, according to the material before the primary judge, has suffered serious mental stress in consequence of the assault upon her.

In these circumstances, while adhering to the view that the sentence imposed was high, in relation to the ordinary level of sentence in domestic violence cases of this general kind, I have been unable to conclude that it is manifestly excessive.  I agree with the order proposed by Moynihan and Ambrose JJ.

JOINT REASONS FOR JUDGMENT - MOYNIHAN & AMBROSE JJ.

Judgment delivered 3 October 1997

This is an application for leave to appeal against sentences of two and a half years imprisonment and nine months imprisonment to be served concurrently imposed upon the applicant on 1 August 1997 upon his conviction upon trial of one count of assault occasioning bodily harm and another count of unlawful assault committed in January 1996.

In essence the appeal is against the severity of the sentence of two and a half years imprisonment imposed for assault occasioning bodily harm. It is the contention of the applicant that that sentence is manifestly excessive and upon the facts a sentence in excess of eighteen months imprisonment cannot be supported.

The offence was committed on 23 January 1996. At that time s.339 of the Criminal Code defined the offence as a misdemeanour attracting a maximum penalty of imprisonment with hard labour for three years.

Subsequently the section was amended and from 1 July 1997 the offence was defined as a crime attracting a maximum penalty of imprisonment for seven years.

At date of conviction and sentence therefore on 1 August 1997 the offence was to be treated as  a misdemeanour attracting a maximum penalty of three years imprisonment.

Stated shortly the applicant on 23 January 1996 unlawfully assaulted his eleven year old daughter by punching her in the stomach and repeatedly punching and kicking her about the head and body and forcibly bringing her head into contact with a wall and a lounge chair. About the same time he unlawfully assaulted the mother of the child (his de facto wife) by punching her about the head on a number of occasions. His wife was then six months pregnant to him.   At that time he was 33 years of age.

Both incidents occurred about lunch time in the living room of a house occupied by the applicant, his wife and children.

At that time only the applicant, his daughter and wife were in the living room. He was motivated to assault both of them by his perception that his daughter without his knowledge had taken it upon herself to take one of her younger brothers away from the family home to one of her aunts for assistance when she observed that he had facial injuries and her mother was not at home. The applicant was at home at the time; when his wife returned home the young boy was still being cared for by her sister and he complained of the propriety of the injured child being taken to his aunt for assistance without his knowledge or authority and the fact that the aunt had apparently informed his wife’s mother of the child’s injury who then had made contact with his wife  and a heated argument developed.

The applicant called his daughter into the house, closing and locking the door and windows and then proceeded to brutally assault her by punching her in the stomach with such force that she fell to the floor where he continued to kick her in the head, stomach, ribs and elsewhere. He also dragged her by the hair across the floor, hitting her head forcibly into a wall of the living room and into a lounge chair located in that room.

In the course of “flogging” his daughter, the applicant punched his wife about the head on a couple of occasions when she attempted to intervene to protect the child and later to get out of the house.

His daughter suffered very painful injuries around the body. However both she and her mother were too afraid to leave the house even to seek medical treatment for the daughter because the applicant forbade them to do so and made threats against them should they do so. They were too afraid to make any complaint for a couple of weeks. During this period the daughter suffered significant pain and eventually the matter was reported to police officers who had the child examined by a doctor about two weeks after the assault; that doctor detected clinical indications that the plaintiff may have suffered some fractured ribs. X-rays then taken however did not reveal any fractures.

The bodily harm inflicted on his daughter by the applicant has had a significant psychological impact upon her which resulted in her being frightened of further injury she might receive at his hands - particularly having brought the assault of which he has been convicted to the attention of the authorities.

When interviewed by police officers on 9 February 1996 - between two and three weeks after the commission of the offences, the applicant denied that there was any truth in the allegations made by his wife and daughter. Indeed he asserted that it was his wife who had assaulted his daughter and that he had never punched or kicked her at any time. He asserted that he had on occasions disciplined her with a strap. Later he said that he had done so with his thong. He said that he had “flogged” her on the back and on her backside “on that day”. He denied the allegations of his daughter and wife that were put to him in the interview. Not merely did he deny those allegations but said in the interview -

“No. Her mother gets into her all the time, punches her to the ground. Kicks her, pull her hair, my three people can prove that. I can see three people was over there that day, they were sitting at the table and Annie jumped up and flogged her to the ground, pulled her hair, punched her you know.”

He asserted that his three brothers were actually in the house visiting him when his wife assaulted his daughter. He said that the assault “might have been two, three weeks ago”. He said that it happened near the kitchen table.

Upon arraignment the applicant pleaded not guilty. On his behalf it was put to both his wife and daughter that the evidence they gave in support of the Crown case was untrue and that in fact it had been his wife who had severely “flogged” his daughter on the day in question. It was put to both that in fact the applicant had not touched either of them and indeed that in the presence of his three brothers who happened to be sitting in the kitchen at the time his wife punched, kicked, pulled the hair etc. of his daughter.

Both his wife and daughter denied this to be true and reaffirmed their evidence to the effect that it was the applicant who had assaulted each of them at the time in question.

At the close of the Crown case the applicant elected not to give evidence. He did however call his brother John Ottaviano who gave evidence broadly supporting the applicant’s assertions made when first interviewed by police officers that in fact it was his wife who had assaulted his daughter at the time in question and supporting what had been put to the applicant’s wife and daughter in cross examination by his Counsel. Indeed, he said that the applicant simply continued to sit at the table and that it was he (the brother) who eventually “got up and broke it up”.

It is unnecessary to analyse or dissect the evidence given by the applicant’s brother. It suffices to say that we find it unsurprising that it was rejected by the jury which convicted the applicant on both counts. 

In imposing sentence the learned sentencing Judge described the assaults as involving a savage and cowardly attack which had had a lasting adverse effect on the applicant’s daughter who was still suffering emotionally as a consequence of it eighteen months later. He observed that the nature of the defence advanced at trial which had been rejected by the jury simply demonstrated a total lack of remorse for the commission of the offences.   His Honour referred to the action of the applicant in closing the windows and door of the house in which he resided with the family “so that the cries of the two females involved would not be heard”.

His Honour referred to the criminal antecedents of the applicant stretching from October 1982 to August 1995. They were mainly property offences although they included two convictions for indecent assault on a female, the first in August 1984 which attracted a sentence of 18 months imprisonment and a second one in June 1991 which attracted a sentence of three years imprisonment. After imposing a sentence of imprisonment for two years and six months, for the offence committed on his daughter, his Honour pointed out to the applicant that if he continued to behave in such a manner to members of his family or other female persons “You can only expect to receive heavier and heavier sentences.”

We infer from this observation that his Honour may have had in mind the two previous indecent assault convictions which had attracted eighteen months imprisonment and three years imprisonment respectively. The circumstances of those offences however were not disclosed.

This was not a case where it could be said on the evidence that in the course of attempting to discipline his eleven year old daughter with any arguably reasonable basis for doing so, he simply lost control of himself or for one reason or another applied force which exceeded what  in calmer moments he may have judged to be reasonable.

This was a case where on the evidence the applicant became angry with his daughter because she took her younger brother to her aunt’s house for assistance with respect to facial injuries that that child apparently had sustained in some fashion which was not canvassed upon the trial. He perceived that her action in doing so without his express knowledge and authority was an affront to his dominance over the family members living in the family home which justified not merely the appalling beating which he gave to his daughter but also the warnings he gave to her and his wife about disclosing that matter to anybody which so terrified them that there was a significant delay before the matter was brought to the attention of the police and before the daughter received medical examination.

While of course in imposing sentence the learned sentencing Judge was constrained by the penalty provided under s.339 of the Code at the time of the offences, the serious view of such behaviour which the Legislature took at the time when sentence was imposed is reflected in the amendment to s.339 on 1 July 1997 in which the penalty was more than doubled. 

Having regard to the willingness of his brother to support the applicant by giving evidence which unsurprisingly was rejected by the jury, a condign sentence was required to act as a deterrent not merely to the applicant but also to persons with whom he was accustomed to associate.

For the appellant reference was made to Griffin C.A. 532 of 1996 delivered 13 May 1997 and Di Cola C.A. 192 of 1997 delivered 15 July 1997. Both cases involved the use of unacceptable force (“misguided discipline”) in disciplining 5 year old children. In the first case a sentence of 12 months imprisonment was reduced to 6 months and in the second this Court refused to interfere with a sentence of 4 months imprisonment. The nature of the assaults and ages of the children in those cases were so different from those in the present case that in our view they offer no guidance in determining punishment appropriate for the applicant’s criminality.

Looking at the gravity of the offence for which the applicant was convicted which involved a 33 year old man kicking his 11 year old daughter in the head, stomach and ribs as she lay on the floor, in our view, it was within the sound sentencing discretion of the learned sentencing Judge to impose the penalty which he did.

In our view, it has not been shown that the sentence imposed was manifestly excessive.

We would dismiss the application for leave to appeal against sentence.