Bhatia v R

[2024] NSWCCA 28

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 15A

Crimes 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:

Alenezi v R [2023] NSWCCA 283

Azzopardi v R [2019] NSWCCA 306

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Li v R [2023] NSWCCA 112

Masters v R [2019] NSWCCA 233

Meoli v R [2021] NSWCCA 213

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

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Zheng v R [2023] NSWCCA 64

Category:

Principal judgment

Parties:

Harinderjeet Bhatia (Applicant)
Rex (Respondent)

Representation:

Counsel:
A Chhabra and V Bromberger (Applicant)
J Styles (Respondent)

Solicitors:
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:

1. It is important not to conflate prospects of rehabilitation with the unlikelihood of re-offending, which are separate and distinct concepts: [44] - [45] per Weinstein J (Simpson AJA agreeing at [1]; Button J agreeing at [2]).

Meoli v R [2021] NSWCCA 213; Li v R [2023] NSWCCA 112, referred to.

2. On the evidence which was relevant and known to the court, there was no obligation on the sentencing judge to make a finding that the applicant was unlikely to re-offend: [49] per Weinstein J (Simpson AJA agreeing at [1]; Button J agreeing at [2]).

Weininger v The Queen (2003) 212 CLR 629; [203] HCA 14; Alenezi v R [2023] NSWCCA 283, referred to.

3. Alternatively, by use of the word “neutral”, the sentencing judge did make a finding of fact as to whether the applicant was unlikely to re-offend: [50] per Weinstein J (Simpson AJA agreeing at [1]; Button J agreeing at [2]).

JUDGMENT

1. SIMPSON AJA: I agree with Weinstein J.

2. BUTTON J: I agree with Weinstein J.

3. WEINSTEIN J: Pursuant to s 5 of the Criminal Appeal Act 1912 (NSW), Harinderjeet Singh Bhatia (the applicant) seeks leave to appeal against the sentence imposed on him by Payne DCJ on 24 March 2023. The applicant was sentenced for two counts of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900 (the Crimes Act). The maximum penalty for each offence is five years imprisonment. The victim of the assaults was the stepson of the applicant.

4. Her Honour imposed an aggregate sentence of 3 years and 9 months, with a non-parole period of 2 years. The indicative sentences were, for sequence 1, after a 25% discount for the plea of guilty, 2 years and 5 months and for sequence 2, after a discount of 25% for the plea of guilty, 2 years and 7 months.

5. The applicant relies on one ground of appeal, that Payne DCJ failed to make a finding as to the applicant’s likelihood of reoffending. For the following reasons, I would grant leave to appeal and dismiss the appeal.

6. I observe that there is a statutory non-publication order with respect to the identity of the victim and any material that tends to identify him pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). I will therefore refer to him as GS and to his mother as MK.

Factual background

7. The factual background in this matter is set out in the Statement of Agreed Facts, signed by the applicant, his lawyer and the solicitor for the ODPP which was in evidence before Payne DCJ on sentence. There is no challenge to those facts on this appeal. They were pithily summarised by her Honour and they disclose the following.

8. At the time of the offending, the applicant was 39 years old and the victim was 2 years and 11 months old. The applicant was then in a de facto relationship with GS’s mother MK. On 13 February 2022, MK left to go to work as an assistant at a nursing home. GS would usually be cared for on weekends at a nearby family day care centre, but on that day the carer was unavailable due to isolation protocols during the COVID-19 pandemic. Instead, GS stayed at home in the care of the applicant, who was not working on that day.

9. During a work break, at 9:52 am, MK had a video call with the applicant. She spoke to GS and the applicant and could see that GS was sitting on his chair in the loungeroom eating pizza that had been sliced up. After the phone call, MK returned to work.

10. At about 10:40 am, two witnesses heard a male yelling and a child crying from the property adjoining the house in which they were staying. Both witnesses looked into that property and had a clear line of sight into the kitchen. GS was seated on the kitchen bench with the applicant facing him. He had his hands raised on either side of his face with his palms facing inwards, covering his cheeks. The applicant slapped GS’s right hand away from his face. He then slapped the right side of GS’s forehead and face approximately seven more times (sequence 1). The applicant then grabbed GS by his neck with both hands for approximately six seconds. He then picked GS up off the bench, holding him by the neck, and threw him onto the ground. While GS was on the ground, the applicant contacted GS’s shoulder once with his right leg (sequence 2). At this point, one of the witnesses yelled out, “Oi what the fuck are you doing!” while the other called the police.

11. Prior to the arrival of the police, the applicant called MK and told her that GS may need to go to hospital. Police arrived, and the applicant was placed under arrest. At the time of the applicant’s arrest, MK came home and spoke with him. She informed the police that the applicant had told her that GS had fallen.

12. The applicant was taken to St Mary’s police station where he participated in a recorded interview. He denied hitting the child. He said that GS had a choking problem, that he had found GS unconscious and that he was trying to wake him up. He admitted to slapping GS on the leg and holding him by the neck, but said that he did this to try to wake GS up to help “unchoke” him.

13. The applicant told police that he had consumed two bottles of beer that morning at 9:30 am.

14. An ambulance took GS to hospital. He was referred to the Child Protection Unit at Westmead Hospital. He was then admitted to the Children’s Hospital at Westmead for three nights. GS was found to have the following injuries:

1. Bruising to the left forehead, ears, around the eyes, temporal region and cheeks;

2. An acute fracture of the surgical neck of his right humerus; and

3. An acute fracture through the tip of the right transverse process of T1.

15. After his discharge from the hospital, GS required no further medical intervention in relation to his injuries. He no longer lives with the applicant and MK and has been residing with his maternal grandparents in India since 28 April 2022.

16. An expert medical report of Dr Paul Rex Hotton dated 25 May 2022 noted that the injury to the humerus was an injury that was very unlikely to have occurred because of the slapping of the back during a choking event and that a fracture of the T1 vertebrae is an injury often caused by trauma such as a significant fall.

17. The applicant gave evidence in the sentence proceedings. He gave an explanation contrary to that set out in paragraph [10] above, and consistent with paragraph [12]. Her Honour expressed a concern that the applicant was traversing his plea, which he and his counsel denied, and he specifically told her Honour that he adhered to his plea. He told the Court in evidence that he had consumed half a bottle of scotch and three beers that morning, which was significantly in excess of the amount stated in the Statement of Agreed Facts, and that he was intoxicated at the time of the assaults.

The sentencing of the applicant

18. Payne DCJ delivered an ex tempore judgment during a busy circuit at Katoomba. Her Honour found that sequence 1 fell slightly above the mid-range of objective seriousness, bearing in mind the significance and location of the injuries. With respect to sequence 2, her Honour accepted the Crown’s submission that the injury suffered by the victim was the most serious type falling within the definition of actual bodily harm, such that the objective seriousness was significantly increased. Her Honour concluded that it was slightly above mid-range. She noted that aggravating factors included that the offence was committed in the home of the victim, that the applicant had abused a position of trust or authority, and that the victim was vulnerable due to his very young age. Payne DCJ did not consider that the applicant’s alcohol intake and intoxication in the morning of 13 February 2022 were mitigating: see s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act).

19. In his evidence, the applicant maintained that he had acted in the way that he did to prevent the child from choking, but her Honour rejected his account on the balance of probabilities. Her Honour said that while she could not determine the reason why he assaulted GS, she was satisfied beyond reasonable doubt that his actions had caused serious injuries to a very small child.

20. Judge Payne found that the applicant’s criminal record did not disentitle him to leniency and that he was a person of good character. Her Honour also noted that the applicant had taken steps since the offending to stop drinking alcohol as well as taking part in an anger management program.

21. With respect to the applicant’s remorse, her Honour said the following:-

“As to remorse, it is very hard to assess this because as is noted very clearly in the sentence assessment report, he has an extreme lack of insight. He did not acknowledge the gravity of the injuries to the child as he presented fixated on his version of the day. He appeared dismissive to conversation surrounding abusive behaviour when discussing the pattern of domestic related aggression. He demonstrated minimal insight to the impact of his physical reaction, particularly injury to the child. He noted the adverse effect this has caused for his family and noted he jeopardised his employment opportunities.

He undertook some treatment and that is noted in the defence submissions, but before I go to that in respect of remorse, I accept that he is sorry for his offending behaviour but it is difficult to see that he has actually acknowledged “any injury, loss or damage caused by his or actions”.”

22. Her Honour was thus not satisfied that the applicant had made out the statutory mitigating factor pursuant to s 21A(3)(i) of the Sentencing Act. However, on balance, her Honour found that the applicant should have the benefit of some degree of remorse.

23. With respect to the applicant’s risk of re-offending and rehabilitation, her Honour said the following:-

“As well as the defence submissions it was emphasised that it was spontaneous and unplanned offending. It was contended it was unlikely he will reoffend. I make no finding one way or another. This is in my view neutral. It is very hard to assess. It is also contended by the defence he has got good prospects of rehabilitation. In my view this can only be assessed as reasonable in all the circumstances. It was submitted that he is remorseful and accepts responsibility. I have already commented on this.” [emphasis added]

24. Payne DCJ found that there should be a minimal reduction in the applicant’s moral culpability and a slight moderation of general deterrence, given his longstanding symptoms of depression and anxiety caused by the decline of his business, the failure of his first marriage, the unresolved Family Court proceedings in relation to that marriage and the impact of his exposure to the criminal justice system (he having been in remand for more than 4 months).

Submissions

Applicant’s submissions

25. Mr Chhabra, counsel for the applicant, contended that Payne DCJ was obliged, pursuant to s 21A(3)(g) of the Sentencing Act, to make a finding as to whether he was unlikely to re-offend. The applicant submitted that her Honour’s statement that she could make no finding one way or another, or that the factor was “neutral”, was in fact no finding at all.

26. The applicant relied on the evidence tendered before her Honour to establish his unlikelihood of re-offending. This included the Sentencing Assessment Report (SAR) dated 6 March 2023 under the hand of Anna Johansson, Community Corrections Officer, which assessed the applicant at a low risk of re-offending according to the Level of Service Inventory – Revised (LSI-R). That Ms Johansson also observed that the applicant justified his behaviour and claimed that he had not intended to be violent, that he did not acknowledge the gravity of the injuries suffered by the child, that he appeared unconcerned about his violent outburst that day, that he demonstrated minimal insight into the impact of his actions and that he disagreed with the police facts told against the LSI-R risk assessment.

27. The applicant also relied on a report by Mr Tim Watson-Munro, clinical psychologist, dated 22 March 2023. Mr Watson-Munro, who was not cross-examined, observed that the applicant was a psychologically troubled man who expressed appropriate remorse for his conduct. Reliance was also placed on letters to the court from the applicant and MK, both of whom said that he would never commit any like crimes again. The applicant also relied on evidence that he had ceased consuming alcohol after his arrest, that he had completed an online anger management course, that he had attended one online session of the SMART Recovery Program on 16 March 2023 and that he had attended one counselling session with Riverlands Therapy Service.

28. The applicant submitted that this evidence, and her Honour’s finding that the applicant’s prospects of rehabilitation were reasonable and the qualified finding of some remorse, are incongruent with her decision “not to make a finding one way or the other” as to whether the applicant was unlikely to re-offend.

29. The applicant also submitted that remorse, prospects of rehabilitation and unlikelihood of re-offending had been bundled together by the Crown Prosecutor because of the applicant’s perceived lack of insight. He submitted that these three mitigating factors had to be considered and independently determined by Payne DCJ, and that the applicant was entitled to a separate and explicit finding with respect to the unlikelihood of his re-offending.

30. The applicant submitted that the following factors were salient to this application:-

1. The applicant had a limited criminal history and was otherwise of good character;

2. The applicant had stopped drinking alcohol after his arrest;

3. The applicant had expressed some degree of remorse;

4. The offending was spontaneous and unplanned;

5. The applicant’s prospects of rehabilitation were reasonable;

6. The applicant had taken steps to deal with his anger management issues; and

7. The applicant’s risk of re-offending had been assessed as low in the SAR.

31. Mr Chhabra submitted that her Honour’s words, “I make no finding one way or another”, amounted to a failure by the sentencing judge to make a finding and that by her own words, she had expressed that “neutral” was not a finding.

32. Mr Chhabra relied on the comments of Hamill J (with whom Bathurst CJ and Macfarlan JA agreed) in Masters v R [2019] NSWCCA 233 (Masters) at [31], where his Honour said:-

“The evidence before the sentencing Judge was not completely consistent on the issue of rehabilitation. The pre-sentence report suggested the applicant represented a “medium risk of re-offending”. The evidence called by the applicant was far more positive. These differences in the evidence required clear and transparent resolution.”

33. Mr Chhabra submitted that her Honour did not resolve the issue about the unlikelihood of re-offending and that her Honour had specifically declined to make a finding.

34. In my opinion, Masters does not assist the applicant. In that case the trial judge, after hearing submissions about prospects of rehabilitation and the unlikeliness of re-offending, failed to consider those factors in his sentence judgment. That is not the case here. The applicant’s complaint is that her Honour, having considered the unlikelihood of re-offending, declined to make a finding about it.

Respondent’s submissions

35. Mr Styles, who appeared on behalf of the Crown, submitted that the appeal should be dismissed because Payne DCJ had either made a finding about the applicant’s likelihood of re-offending which was open to her on the evidence or alternatively, it was open for her Honour to determinatively make no finding.

36. The Crown contended that, aside from its incorporation in a list referring to
    s 21A of the Sentencing Act in the applicant’s written submissions, tendered in the proceedings below, the unlikelihood of his reoffending was not directly engaged with by defence counsel in the proceedings before her Honour, either orally or in writing. The Crown Prosecutor, on the other hand, directly engaged with the applicant’s likelihood of re-offending in oral submissions. He submitted to her Honour that the applicant’s lack of insight and his lack of acceptance of responsibility for his offending pointed to a negative finding.

37. The Crown submitted that Payne DCJ made a finding about the risk of re-offending, within the factual matrix with which she was presented. The finding was that she did not make a finding “one way or another” and that the applicant’s risk of re-offending was “neutral”, which was to the effect that the re-offending was neither likely or unlikely, and that “neutral” represented the mid-point in the range of possible holdings. He submitted that “neutral” was the appropriate determination, as the applicant had failed to satisfy her Honour on the balance of probabilities that he was unlikely to re-offend and she resolved the controversy by making a finding that was neither positive nor negative for either party.

38. The Crown next submitted that the “neutral” finding was open to her Honour, who also found that the risk of re-offending was “hard to assess”. The good character of the applicant pointed in one direction, whilst his history of past domestic violence in the context of his lack of insight, pointed in the other. Mr Styles submitted that in these circumstances, her Honour’s finding was both coherent and transparent, particularly in light of her Honour’s other findings relevant to the calculation and assessment of the risk of re-offending, that:

1. The applicant was of good character;

2. The offending was unplanned, which cut both ways;

3. The applicant had taken steps to stop drinking in light of his past alcohol abuse;

4. The applicant had received some treatment to date;

5. The applicant had a (short) criminal history relating to domestic violence;

6. The applicant had a lack of insight into the offending; and

7. The applicant was dismissive when discussing controlling behaviour in the context of domestic aggression.

39. Alternatively, even if it was accepted that her Honour made no finding about the risk of re-offending, the Crown submitted that it was open to her Honour to do so. Mr Styles submitted that determinations about aggravation and mitigation, i.e. about facts that do or do not favour a party, may be difficult determinations to make because of the different standards of proof. The Crown submitted that there may be circumstances when a sentencing judge may not be able to make findings about all matters. He pointed out that Payne DCJ recognised this proposition when she cited R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich) in rejecting the applicant’s evidence about his conduct in the acts constituting the offences.

40. Mr Styles submitted that the “neutral” finding was open and entirely apt, as the whole of the evidence was ambivalent about the applicant’s prospects of re-offending, and because he had not proved on the balance of probabilities that he was at a low or reduced risk of re-offending.

Consideration

The requirement to make a finding

41. Section 21A of the Sentencing Act relevantly provides:-

21A   Aggravating, mitigating and other factors in sentencing

(1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters—

…

(b)  the mitigating factors referred to in subsection (3) that are relevant and known to the court,

…

(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

…

(g)  the offender is unlikely to re-offend,

(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

…

42. Any mitigating factor which is relevant and known to the court, being a circumstance to be taken into account in favour of an offender, is to be proved on the balance of probabilities: Olbrich at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ, citing R v Storey [1998] 1 VR 359 at 369 per Winneke P, Brooking and Hayne JJA and Southwell AJA.

43. The phrase, “relevant and known to the court” (in the context of s 16A of the Crimes Act 1914 (Cth)) was considered by the High Court in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 (Weininger). Gleeson CJ, McHugh, Gummow and Hayne JJ said at [19] – [20]:-

“[19] … Framing the question in terms of onus and standard of proof may suggest that all disputed issues of fact related to sentencing must be resolved for or against the offender. That is not so. As was recognised in Olbrich, some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed. There may be issues which the material available to the sentencing judge will not permit the judge to resolve in that way.

[20] …The sentencing judge may not be able to make findings about all matters that may go to describe those circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt…” [Citations removed]

44. It is important not to conflate prospects of rehabilitation with the unlikelihood of re-offending, which are separate and distinct concepts. As was noted by Simpson AJA, with whom Bathurst CJ and Bellew J (with additional reasons) agreed, in Meoli v R [2021] NSWCCA 213 at [39]:-

“I will therefore proceed on the basis that adherence to the requirements of s21A(3) requires, where it is relevant and known to the court, that unlikelihood of re-offending is to be taken into account, separately and distinctly from prospects of rehabilitation. The sentencing judge’s assessment of the applicant’s prospects of rehabilitation is not a discrete finding with respect to s 21A(3)(g). I pause to observe, and will return to this, that what is required, for the purposes of par (g), to be taken into account is unlikelihood of re-offending.”

45. In Li v R [2023] NSWCCA 112 (Li), Fagan J observed at [2], that whilst the consideration of the unlikelihood of re-offending is distinct from an offender’s prospects of rehabilitation, evidence relating to one will often be relevant to the other. I would add that often, remorse is similarly closely related. It follows that a rehabilitated offender, or one who displays genuine remorse, will also be less likely to re-offend. However, these factors may also be independent of one another. In written submissions, the Crown helpfully provided such an example, when an unrepentant, untreated offender has reached an age or physical condition where their risk of re-offending is significantly diminished.

46. In the recent case of Alenezi v R [2023] NSWCCA 283 (Alenezi), Basten AJA (with whom Adamson JA and Sweeney J agreed) said the following at [24] – [26] with respect to a sentencing judge’s “failure” to make findings about relevant mitigating factors:-

“[24] The factors identified in s 21A may properly be described as material, and possibly mandatory, considerations so that error might be demonstrated if they were disregarded. However, as s 21A(1) expressly states, it is only those factors that are “relevant and known to the court” which are required to be taken into account. The onus is on the offender to establish mitigating factors, and it will rarely be open for the offender to complain of a failure on the part of a sentencing judge to make a favourable finding. That is for three reasons. First, each of the concepts is imprecise and involves matters of degree. Secondly, two are forward-looking and can usually be speculative at best. The third (remorse) is often difficult to establish because offenders usually regret past conduct once penal consequences are, or are about to be, visited upon them, a matter which may be difficult to distinguish from remorse. Thirdly, much will depend upon the evidence. There will rarely be error on the part of the sentencing judge in failing to make a favourable finding on such matters if the offender has not given evidence at the sentencing hearing.

[25]   In Ali v R, Johnson J noted, with respect to a similar assertion of error in failing to make positive findings that the offender was unlikely to reoffend and had good prospects of rehabilitation, that the onus lay on the offender to demonstrate a mitigating factor of that kind. He continued, referring to R v MAK, that this Court had stated that “remorse will be a major factor in determining whether an offender is unlikely to reoffend and had good prospects of rehabilitation and that, without true remorse, it is difficult to see how either finding could be made”.

[26]   As will appear, the sentencing judge was not satisfied as to “true remorse”. There was, therefore, no basis for this Court to intervene with respect to the complaint of failure to make findings.” [citations removed]

47. In this case, whilst there was evidence in the SAR which suggested that the applicant was unlikely to reoffend, there was also evidence that pulled in the other direction, including evidence [in it] about the interrelated factors of insight, rehabilitation and remorse. As to her Honour’s comments about remorse, see para [21] above. The applicant’s lack of insight and his failure to take responsibility clearly loomed large in Payne DCJ’s reasoning with respect to the applicant’s remorse, his prospects of rehabilitation and whether he was unlikely to re-offend. As Basten AJA alluded to in Alenezi, remorse is often a factor in determining whether an offender is unlikely to re-offend.

48. The applicant gave evidence at the sentence hearing, but the evidence he gave was inconsistent with him being truly remorseful for his actions. Referring to his evidence, Payne DCJ said that:-

“[The applicant] gave an explanation in court that related to his alcohol intake. That of course is not mitigating. He also said that his behaviour was not entirely consistent with the agreed facts although he made it absolutely clear that he accepted the agreed facts, but he said he did not know the effect of what happens to a premature baby or the effect of that having taken place, and he explained his behaviour as acting in a way to prevent the child choking. The actions he accepted he did were not consistent with that sort of approach. I reject his account given in sworn evidence having considered all the cross-examination.”

49. Judge Payne patently was not satisfied, on the evidence which was relevant and known to the court, that the applicant was unlikely to re-offend. In the circumstances, and in conformity with what was said by the High Court in Weininger at [20], there was no obligation on her Honour to make such a finding. In my opinion, the appeal fails on this basis.

Payne DCJ made a finding

50. In the alternative, in my view, by use of the word “neutral”, her Honour did make a finding of fact as to whether the applicant was unlikely to re-offend. Where there is a challenge to a finding of fact, such as a finding as to the prospects of rehabilitation or unlikeliness or otherwise of re-offending, the question is whether or not the finding was open on the material before the sentencing judge: see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [131]; Azzopardi v R [2019] NSWCCA 306 at [36] – [39].

51. In Li, addressing the issue of whether or not a trial judge had taken into account the applicant’s likelihood of re-offending, Yehia J (with whom Davies and Fagan JJ agreed) said at [48] that “…what is required is that the reasons [of the sentencing judge] make it evident that the relevant factors have been taken into account.”

52. In this matter, Payne DCJ explicitly addressed the unlikelihood of re-offending in her reasons. The applicant submitted that the words “I make no finding one way or another” and “[t]his is in my view neutral” should be taken to mean that her Honour refused to make a finding. In my opinion, the better interpretation of her Honour’s words is that, on the balance of probabilities, her Honour could not be satisfied “one way or another” that the applicant was unlikely to reoffend, as the matter was not capable of resolution in his favour on the evidence. Rather, she found that the applicant’s risk of re-offending lay somewhere in the middle of the spectrum between likely and unlikely, taking into account all of the evidence that pulled in competing directions. This interpretation is supported by what her Honour next said, which is that the applicant’s risk of re-offending was “very hard to assess”. This statement does not point to her Honour refusing to make a finding, but rather to the fact that all of the evidence did not support a finding, on the balance of probabilities, that the applicant was unlikely to re-offend.

53. While her Honour considered the unlikelihood of reoffending close to her assessments of his prospects of rehabilitation and his remorse, she distinctly addressed each factor individually and made appropriate findings. In contrast to what was submitted by the applicant, in my opinion her Honour’s finding of “neutral” represents a clear and transparent resolution based on all of the evidence, including the applicant’s evidence at the sentence hearing, and the issues then ventilated. It was a finding open, on the material before her.

54. In accordance with his duty to the court, Mr Chhabra provided two recent cases that militated against the resolution of the matter in the applicant’s favour, being the decisions of Zheng v R [2023] NSWCCA 64 and Tonga, Samuel v R [2023] NSWCCA 120. Both decisions are examples where the primary judge made a finding of “neutral” or expressed “a neutral view” as to the risk of re-offending, and which were not disturbed on appeal. I observe that in neither of these decisions was “neutrality” a key factor in the determination of the appeal. Nevertheless, in my view it further supports the proposition that “neutral” is a finding open to a sentencing judge after a consideration of all the evidence and after all relevant factors have been taken into account.

55. In my opinion, error has not been established.

Orders

56. I propose the following orders:-

1. Grant leave to appeal against the sentence.

2. Appeal dismissed.

**********

Decision last updated: 06 March 2024