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:

It is important not to conflate prospects of rehabilitation with the unlikelihood of re-offending, which are separate and distinct concepts:…

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 Bhatia v R

Details

AGLC: Bhatia v R [2024] NSWCCA 28
Case: [2024] NSWCCA 28
Decision Date: 06 March 2024

CaseChat Overview and Summary

The case of Bhatia v R involved an appellant, Bhatia, who had been sentenced for criminal offences and subsequently appealed against the sentence imposed by the sentencing judge. The primary legal issue before the court was whether there is an obligation on a sentencing judge to make a finding of fact about an offender's unlikelihood of re-offending. The appellant argued that the sentencing judge had failed to consider the evidence that supported the view of Bhatia's unlikelihood to re-offend. The central question was whether the absence of such a finding constituted a ground for appeal.

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