Neupane v The The Queen - [2022] NSWDC 598

District Court

New South Wales

Medium Neutral Citation: Neupane v R [2022] NSWDC 598
Hearing dates: 27 July 2022
Date of orders: 27 July 2022
Decision date: 27 July 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
(1) The Final ADVO orders made on 10 November 2021 by Farnan LCM shall stand
(2) In each case the appeal from the finding of guilt by the magistrate is dismissed
(3) In each case the findings of guilt are confirmed
(4) In each case allow the appeals from conviction
(5) In each case, and pursuant to s10(1)(b) Crimes (Sentencing Procedure) Act 1999, I find the offence proved but without proceeding to conviction I discharge the appellant upon him entering into a Conditional Release Order pursuant to s9(1)(b) Crimes (Sentencing Procedure) Act 1999, for a period of 2 years from today

Catchwords:
CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction
CRIME — Appeal and review — Appeal from Local Court to District Court
CRIME — Violent offences — Assault occasioning actual bodily harm
CRIME — Violent offences — Common assault

Legislation Cited:
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995
Justices Act 1902
Supreme Court Act 1970

Cases Cited:
Charara v R [2006] NSWCCA 244
Dyason v Butterworth [2015] NSWCA 52
McNab v DPP [2021] NSWCA 298

Category: Principal judgment
Parties: Homnath Neupane (Appellant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Daniel Petrushnko (counsel for the Appellant)
Isha Fay (solicitor for the Respondent)

File Number(s): 2019/00369173 & 2019/00369190
Decision under appeal

Court or tribunal:

Burwood Local Court

Jurisdiction:

Criminal

Date of Decision:

10 November 2021

Before:

Farnan LCM

File Number(s):

2019/00369173 & 2019/00369190

EX TEMPORE REVISED JUDGEMENT – Application for findings of guilt to be dismissed

Introduction

Homnath Neupane was convicted in the Local Court at Burwood on 10 November 2021 after the defended hearing of two charges, the first of common assault contrary to s 61 Crimes Act 1900 upon a person of the name Zoubinda Dhahal. The second offence was one of assault occasioning actual bodily harm contrary to s 59(1) Crimes Act1900 upon Pabitra Basnet, the wife of the first complainant. The offences were said to have occurred between 1.10pm and 1.40pm on 11 November 2019.
The hearing in the Local Court commenced on 8 June 2021, from which date it was adjourned until 10 November 2021. At the conclusion of evidence and submissions on that day, the magistrate found the offences proved and convicted the appellant.

The Appeals

The appeals from conviction were lodged within the 28-day period specified in the Crimes (Appeal and Review) Act 2001 and thus are pursued as a matter of right. Provision for these appeals is found in s 11(1) of the Act. Appeals from conviction or sentence are available without leave if lodged within the period of 28 days from the determination by the magistrate.

The Nature of the Appeals

The appeals…

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 Neupane v The The Queen

Details

AGLC: Neupane v The The Queen [2022] NSWDC 598
Case: [2022] NSWDC 598
Decision Date: 27 July 2022

CaseChat Overview and Summary

The matter of Neupane v The Queen was an appeal against a conviction by the appellant, who had been found guilty by a magistrate in the Local Court of various criminal offences, including assault occasioning actual bodily harm and common assault. The appellant contested the conviction, leading to an appeal to the District Court. The District Court was required to determine whether the magistrate's findings of guilt were correct and if the convictions were justified. The court also needed to consider whether the sentences imposed were appropriate or if alternative sentencing options under the Crimes (Sentencing Procedure) Act 1999 were more suitable.

The District Court examined the evidence presented in the Local Court proceedings and the arguments made by both parties. The court found that the magistrate's findings of guilt were supported by the evidence and thus dismissed the appellant's appeal against the findings of guilt. However, the court accepted the appeal against the convictions, finding that while the appellant was guilty, the imposition of a conviction was not necessary. Instead, the court decided to discharge the appellant without conviction, requiring him to enter into a Conditional Release Order for two years, as permitted under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999.

The final orders of the court included the confirmation of the magistrate's findings of guilt and the dismissal of the appeal against those findings. The court also confirmed the appeal against the convictions, discharging the appellant without a conviction but requiring him to enter into a Conditional Release Order for two years. Additionally, the Final ADVO orders made by the Local Court were to stand.

Orders

Orders of the court

(1) The Final ADVO orders made on 10 November 2021 by Farnan LCM shall stand

(2) In each case the appeal from the finding of guilt by the magistrate is dismissed

(3) In each case the findings of guilt are confirmed

(4) In each case allow the appeals from conviction

(5) In each case, and pursuant to s10(1)(b) Crimes (Sentencing Procedure) Act 1999, I find the offence proved but without proceeding to conviction I discharge the appellant upon him entering into a Conditional Release Order pursuant to s9(1)(b) Crimes (Sentencing Procedure) Act 1999, for a period of 2 years from today

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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Medium Neutral Citation:	Neupane v R [2022] NSWDC 598
Hearing dates:	27 July 2022
Date of orders:	27 July 2022
Decision date:	27 July 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	(1) The Final ADVO orders made on 10 November 2021 by Farnan LCM shall stand (2) In each case the appeal from the finding of guilt by the magistrate is dismissed (3) In each case the findings of guilt are confirmed (4) In each case allow the appeals from conviction (5) In each case, and pursuant to s10(1)(b) Crimes (Sentencing Procedure) Act 1999, I find the offence proved but without proceeding to conviction I discharge the appellant upon him entering into a Conditional Release Order pursuant to s9(1)(b) Crimes (Sentencing Procedure) Act 1999, for a period of 2 years from today
Catchwords:	CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction CRIME — Appeal and review — Appeal from Local Court to District Court CRIME — Violent offences — Assault occasioning actual bodily harm CRIME — Violent offences — Common assault
Legislation Cited:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Justices Act 1902 Supreme Court Act 1970
Cases Cited:	Charara v R [2006] NSWCCA 244 Dyason v Butterworth [2015] NSWCA 52 McNab v DPP [2021] NSWCA 298
Category:	Principal judgment
Parties:	Homnath Neupane (Appellant) Director of Public Prosecutions (NSW) (Respondent)
Representation:	Daniel Petrushnko (counsel for the Appellant) Isha Fay (solicitor for the Respondent)
File Number(s):	2019/00369173 & 2019/00369190
Decision under appeal	Court or tribunal: Burwood Local Court Jurisdiction: Criminal Date of Decision: 10 November 2021 Before: Farnan LCM File Number(s): 2019/00369173 & 2019/00369190