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Bhatt v The King

Bhatt v The King

Case [2024] NSWCCA 214 22 November 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bhatt v R [2024] NSWCCA 214
Hearing dates: 4 November 2024
Date of orders: 22 November 2024
Decision date: 22 November 2024
Before: Fagan J at [1]
Chen J at [18]
Sweeney J at [107]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – Appeal against sentence – One count of cause grievous bodily harm with intent to cause grievous bodily harm – Whether sentencing judge failed to give legally sufficient reasons for declining to find that the applicant’s mental health conditions contributed to the offending – Where opinion of forensic psychologist is based upon facts favourable to the applicant not found by the sentencing judge – Whether sentencing judge erred in failing to find that the applicant was provoked and/or whether she provided legally sufficient reasons – Whether sentencing judge made “material factual error” – No error by sentencing judge established – Leave to appeal granted – Appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Imbornone v R [2017] NSWCCA 144
Karaali v R [2024] NSWCCA 162
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8
Mifsud v Campbell (1991) 21 NSWLR 725
Ocek v R [2023] NSWCCA 308
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844
Prouten v Chapman [2021] NSWCA 207
R v Mendez [2002] NSWCCA 415
R v Qutami [2001] NSWCCA 353
Resource Pacific Pty Ltd vWilkinson [2013] NSWCA 33
Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598

Category: Principal judgment
Parties: Kedar Bhatt (Applicant)
Rex (Respondent)
Representation:
Counsel:
B Barrack (Applicant)
E Wilkins SC (Respondent)
Solicitors:
LY Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/00310143
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

04 April 2024

Before:

English DCJ

File Number(s):

2022/00310143

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Kedar Bhatt, sought leave to appeal from the sentence imposed on him in respect of one count of cause grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 25 years imprisonment, and a standard non-parole period of 7 years.

By way of brief summary, the applicant and the victim in this matter were known to each other, as they resided in neighbouring streets in south-western Sydney. They first met in…

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 Bhatt v The King

Details

AGLC: Bhatt v The King [2024] NSWCCA 214
Case: [2024] NSWCCA 214
Decision Date: 22 November 2024

CaseChat Overview and Summary

The case of Bhatt v The King involved the appellant appealing against her sentence for causing grievous bodily harm with intent. The appellant argued that the sentencing judge did not adequately consider her mental health conditions and whether they contributed to her offending behaviour. The High Court of Australia was tasked with determining if the sentencing judge had failed to provide legally sufficient reasons for not considering these mental health issues. Additionally, the appellant claimed that the sentencing judge erred in not finding that she was provoked or in failing to provide legally sufficient reasons for that determination. The court had to examine whether the sentencing judge made a material factual error in not accepting the opinion of the forensic psychologist based on facts favourable to the appellant but not found by the sentencing judge.

The primary legal issue was whether the sentencing judge provided legally sufficient reasons for not considering the appellant's mental health conditions and for not finding that she was provoked. The court assessed if the sentencing judge's reasons were adequate and whether there was a material factual error in the judge's findings. The court noted that the sentencing judge had considered the appellant's mental health but did not accept that it contributed to the offending. The forensic psychologist's opinion was based on facts not found by the sentencing judge, which was a key point of contention. The court had to determine if the sentencing judge's failure to accept these facts constituted a material error and whether the judge provided sufficient reasons for their decisions.

The High Court found that the sentencing judge did not make a material factual error and that the reasons provided were legally sufficient. The court held that the sentencing judge had considered the appellant's mental health and determined it did not contribute to the offending. The court also found that the sentencing judge adequately addressed the issue of provocation and provided sufficient reasons for not finding the appellant was provoked. The appellant's arguments did not establish any error by the sentencing judge. Therefore, the court granted leave to appeal but ultimately dismissed the appeal, affirming the original sentence and findings.

Orders