R v Ottaviano - [1997] QCA 338

IN THE COURT OF APPEAL	[1997] QCA 338
SUPREME COURT OF QUEENSLAND

C.A. No. 315 of 1997

Brisbane

[R. v Ottaviano]

T H E Q U E E N

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.

CATCHWORDS:	SENTENCE - whether manifestly excessive - assault occasioning bodily harm - applicant repeatedly punched and kicked his 11 year old daughter
Counsel:	Mrs K. McGinness for the applicant Mr P. Ridgway for the respondent
Solicitors:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	24 September 1997
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ottaviano

Details

AGLC: R v Ottaviano [1997] QCA 338
Case: [1997] QCA 338
Decision Date: 3/10/1997

CaseChat Overview and Summary

The case of R v Ottaviano was heard in the Court of Criminal Appeal. The applicant, Ottaviano, appealed against his sentence for assault occasioning bodily harm to his 11 year old daughter. The incident involved the applicant repeatedly punching and kicking his daughter. The primary issue before the court was whether the sentence imposed by the trial judge was manifestly excessive.

The court needed to determine if the punishment imposed was so disproportionate to the offence that it shocked the conscience or sense of justice. The applicant argued that the sentence was excessively harsh given the circumstances and his otherwise unblemished criminal record. The prosecution contended that the severity of the offence warranted a significant penalty to protect the community and deter similar conduct. The court considered the nature and circumstances of the offence, the principles of sentencing, and the need for proportionality and deterrence.

The Court of Criminal Appeal found that the sentence was not manifestly excessive. The court acknowledged the severity of the applicant's actions but considered the trial judge had appropriately balanced the principles of punishment and deterrence with the personal circumstances of the offender. The appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of ensuring that sentences reflect the gravity of the crime while also taking into account individual factors that may mitigate the offender's culpability.

Orders