Citation: Ottoman v R [2018] NSWDC 374
Court: District Court of New South Wales
Date: 7 December 2018
Judge: Neilson DCJ
Background
The appellant was a father convicted by a Local Court Magistrate at Burwood of three charges of common assault arising from the breakdown of his family. Two of the charges named his wife as the alleged victim. The third named his teenage daughter. The alleged incidents occurred between May and July 2016.
The Local Court convicted the appellant on all three charges on 26 May 2017 and sentenced him on 12 September 2017 to 150 hours of community service on each charge, to be served wholly concurrently. The appellant filed a notice of appeal to the District Court challenging his conviction. A severity challenge was raised informally at the hearing and the District Court also considered it.
The family circumstances involved significant domestic disharmony, including disagreement between the appellant and his wife over a proposed family relocation to Lebanon. Neilson DCJ noted the complexity of the evidence, which spanned 199 pages of transcript and required careful analysis of idiomatic language used by non-police witnesses whose English did not always conform to standard Australian usage.
Legal Issues
- Whether each of the three common assault charges was proved beyond reasonable doubt on the evidence before the Local Court.
- Whether the learned Magistrate erred in her assessment of the evidence, including the credibility of prosecution witnesses.
- Whether the sentences of 150 hours community service per charge, running wholly concurrently, were manifestly excessive.
Decision
Conviction appeal: two charges upheld
Neilson DCJ undertook a detailed review of the evidence relating to each charge, paying close attention to the testimony of the wife, the daughter Lara, and a younger daughter Alisar, as well as the appellant's own evidence. For two of the three charges, his Honour was satisfied the Magistrate's findings were supported by the evidence. The wife's evidence on those charges was corroborated by the children's accounts, and the District Court declined to disturb those convictions.
His Honour acknowledged that the wife had made a false claim during proceedings, suggesting she had told her doctor about the alleged assaults when the medical records did not bear this out. The District Court characterised this conduct not as deliberate dishonesty but as a clumsy attempt at corroboration born of a misguided belief that the case might otherwise reduce to a credibility contest. Importantly, the court noted it had not had the benefit of seeing and hearing the witness give evidence, as the Magistrate had, and that the corroboration from the children's evidence remained sufficient.
Conviction appeal: one charge set aside
In relation to the third charge (the "shoe incident" of 16 July 2016), Neilson DCJ concluded the evidence did not establish the offence beyond reasonable doubt, and the conviction on that charge was set aside.
Severity appeal dismissed
The District Court found the concurrent sentences of 150 hours community service were not excessive. His Honour observed that, assessed individually, each offence effectively attracted 75 hours of community service. The court noted the sentences could, in light of community concern about domestic violence, be regarded as lenient rather than severe, and saw no proper basis to interfere with them in the exercise of its discretion.
Orders Made
- Seq 1 (knife incident, wife as victim): Conviction and sentence confirmed.
- Seq 2 (hair pulling incident, daughter as victim): Conviction and sentence confirmed.
- Seq 3 (shoe incident, wife as victim): Conviction and sentence set aside.
Key Takeaways
- The District Court confirmed that a witness's false attempt to bolster her account does not automatically destroy her credibility where independent corroboration from other witnesses exists and the trial court had the advantage of observing the witness directly.
- A conviction will be set aside on appeal where the evidence, upon careful re-examination, does not reach the standard of proof beyond reasonable doubt, even where other charges arising from the same family circumstances are confirmed.
- Where concurrent sentences are imposed, setting aside one conviction in a multi-charge matter may have no practical effect on the overall sentencing outcome.
- In dismissing the severity appeal, the District Court noted that, had the offences occurred after 24 September 2018, the court would have been required to consider full-time imprisonment under s 4A(1)(a) of the Crimes (Sentencing Procedure) Act 1999, reflecting the legislative hardening of approach to domestic violence offending.
- Careful attention to language and domestic layout evidence can be critical to understanding conflicting accounts in family violence proceedings, as demonstrated by the District Court's detailed analysis of the witnesses' non-standard usage of common directional terms.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 4A(1)(a)
- Evidence Act 1995 (NSW)
Cases cited: No cases were cited in the judgment.