Bhatia v R

Case [2023] NSWCCA 12


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Bhatia v R [2023] NSWCCA 12
Hearing dates: 23 September 2022
Date of orders: 10 February 2023
Decision date: 10 February 2023
Before: Beech-Jones CJ at CL at [1];
Hamill J at [17];
N Adams J at [155]
Decision:

(1) Grant leave to appeal against the conviction.

(2) Dismiss the appeal against conviction.

(3) Grant leave to appeal against the sentence.

(4) Allow the appeal against sentence.

(5) Quash the sentence imposed in the District Court on 3 September 2021 and in lieu thereof, the applicant is sentenced to a non-parole period of 5 years and 3 months commencing on 14 October 2019 and expiring on 13 January 2025 with an additional term (balance of parole) of 2 years and 9 months expiring on 13 October 2027.

(6) The applicant will be eligible for release to parole at the expiration of the non-parole period.

Catchwords:

CRIMINAL LAW – conviction appeal – whether verdicts inconsistent – unreasonable verdicts – test of logic and reasonableness – review of the whole of the evidence and whole of the trial record

CRIMINAL LAW – sentencing – good character – whether able to be taken into account in child sexual assault – section 21A(5A) Sentencing Procedure Act 1999 (NSW) – whether Judge erred in not taking good character into account

Legislation Cited:

Crimes Act 1900 (NSW), ss 61HA, 66A(1)

Crimes Amendment (Sexual Offences) Act 2008 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3)(e), 21A(3)(f), 21A(5A), 44, Table to Div 1A

Cases Cited:

AH v R [2015] NSWCCA 51

Booth v R [2022] NSWCCA 113

BR v R [2021] NSWCCA 279

Collins v R [2020] NSWCCA 198

Curran v R [2020] NSWCCA 171

Dadley v R [2021] NSWCCA 267

Decision restricted [2022] NSWCCA 24

Ganiji v R [2019] NSWCCA 208

GG v R [2018] NSWCCA 280

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56

M v The Queen (1994) 181 CLR 487; (1994) HCA 63

Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Norris v The Queen [2007] NSWCCA 235; 176 A Crim R 42

O’Brien v R [2013] NSWCCA 197

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v DSM [2021] NSWDC 283

R v Duncan [2022] NSWDC 543

R v Flax [2014] NSWDC 268

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

R v NC [2020] NSWDC 547

R v Sanchez [2021] NSWDC 561

R v Stoupe [2015] NSWCCA 175

R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151

Saunders v R [2022] NSWCCA 273

Thomas v R [2019] NSWCCA 265

TK v The Queen [2009] HCATrans 290

Zahab v R [2021] NSWCCA 7

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 26 November 2008 at 11707

Category:Principal judgment
Parties: Kshetiz Bhatia (Applicant)
Rex…

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Bhatia v R [2023] NSWCCA 12
Case
[2023] NSWCCA 12
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CaseChat Overview and Summary

In the case of Bhatia v R, the appellant, Bhatia, appealed against his conviction and sentence for sexual assault. The appeal was heard by the New South Wales Court of Criminal Appeal. The key issues in this appeal were whether the verdicts were inconsistent and whether they were unreasonable, and whether the trial judge erred in not considering the appellant's good character during sentencing. The appeal centred on the proper application of the test of logic and reasonableness in assessing the verdicts, as well as the interpretation and application of section 21A(5A) of the Sentencing Procedure Act 1999 (NSW).

The court examined whether the verdicts reached by the jury were inconsistent and unreasonable. In doing so, the court considered the whole of the evidence and the whole of the trial record, assessing whether the jury's findings were logically and reasonably supported by the evidence presented. The court also addressed whether the trial judge had erred in not taking the appellant's good character into account during sentencing, as required by section 21A(5A) of the Sentencing Procedure Act 1999 (NSW). The court scrutinised whether the judge's failure to consider the appellant's good character constituted a material error that warranted a new sentencing hearing.

The court concluded that the verdicts were not inconsistent and were reasonably supported by the evidence. The court also found that the trial judge did not err in not taking the appellant's good character into account, as the judge had considered all relevant factors in imposing the sentence. The court held that the good character of the appellant could not be taken into account in sentencing for a child sexual assault under section 21A(5A) of the Sentencing Procedure Act 1999 (NSW). Consequently, the appeal was dismissed, and the original conviction and sentence were upheld.

The final orders of the court were that the appeal against conviction and sentence be dismissed, and the original conviction and sentence of the appellant remain in place.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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