Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Bhatia v R [2024] NSWCCA 28 Hearing dates: 01 December 2023 Date of orders: 06 March 2024 Decision date: 06 March 2024 Before: Simpson AJA at [1]
Button J at [2]
Weinstein J at [3]Decision: (1) Grant leave to appeal against the sentence.
(2) Appeal dismissed.
Catchwords: CRIME – appeals – appeal against sentence – whether obligation on a sentencing judge to make a finding of fact about an offender’s unlikelihood of re-offending – no such obligation on the evidence relevant and known to the court – where the sentencing judge made a “neutral” finding – appeal dismissed
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW),
s 15ACrimes Act 1914 (Cth), s 16A
Crimes (Sentencing Procedure) Act 1999 (NSW),
ss 21A, 21A(3)(g), 21A(3)(i), 21A(5)(AA),Criminal Appeal Act 1912 (NSW), s 5
Cases Cited: Azzopardi v R [2019] NSWCCA 306
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Storey [1998] 1 VR 359 at 369
Tonga, Samuel v R [2023] NSWCCA 120
Category: Principal judgment Parties: Harinderjeet Bhatia (Applicant)
Rex (Respondent)Representation: Counsel:
Solicitors:
A Chhabra and V Bromberger (Applicant)
J Styles (Respondent)
YST Legal (Applicant)
Office of the Director for Public Prosecutions (Respondent)
File Number(s): 2022/42220 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Criminal
- Date of Decision:
- 24 March 2023
- Before:
- Payne DCJ
- File Number(s):
- 2022/42220
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant pleaded guilty to two counts of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900. On 13 February 2022, the applicant slapped his two year old stepson approximately eight times, grabbed him by the neck, picked him up and threw him onto the ground.
On 24 March 2023, the applicant was sentenced in the District Court by Payne DCJ to an aggregate sentence of 3 years and 9 months imprisonment with a non-parole period of 2 years. At the sentencing hearing, there was competing evidence about the applicant’s risk of re-offending. Her Honour determined that she could make “no finding one way or another” about the likelihood of the applicant re-offending, and that this factor was “neutral” in the sentencing exercise.
The applicant appealed against his sentence on the ground that her Honour did not make a finding about his likelihood of re-offending.
The Court (Simpson AJA, Button and Weinstein JJ) held, granting leave to appeal but dismissing the appeal:
-
It is important not to conflate prospects of rehabilitation with the unlikelihood of re-offending, which are separate and distinct concepts:…
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- Bhatia v R [2024] NSWCCA 28
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- [2024] NSWCCA 28
- Decision Date
CaseChat Overview and Summary
The court considered the arguments presented by the appellant and the submissions made by the Crown. It examined the nature of the sentencing judge's role and the discretion afforded in sentencing matters. The court noted that while the sentencing judge should consider all relevant evidence, there is no obligation to make a specific finding on an offender’s likelihood of re-offending. The court concluded that the sentencing judge had made a neutral finding on the matter, which was within the bounds of judicial discretion. Given the evidence presented and the discretion available to the sentencing judge, the appeal was dismissed as there was no basis to interfere with the sentence on the grounds argued by the appellant.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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