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Court of Criminal Appeal 10 February 2023

Bhatia v R

[2023] NSWCCA 12

Sexual offences
CRIMINAL LAW CONVICTION APPEAL WHETHER VERDICTS INCONSISTENT UNREASONABLE VERDICTS TEST OF LOGIC AND REASONABLENESS SENTENCING

Citation: Bhatia v R [2023] NSWCCA 12
Court: NSW Court of Criminal Appeal
Date: 10 February 2023
Judges: Beech-Jones CJ at CL; Hamill J; N Adams J

Background

The appellant was charged with two counts of sexual intercourse with a child under 10 years of age, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The complainant, referred to as GS, was six years old at the time. The offences were alleged to have occurred while the appellant was caring for GS in the absence of his parents.

At a re-trial in the District Court in June 2021, the jury returned a not guilty verdict on count 1 and a guilty verdict on count 2. The sentencing judge imposed a term of 10 years imprisonment with a non-parole period of six years.

The appellant sought leave to appeal against both conviction and sentence, raising four grounds: that the guilty verdict was inconsistent with the acquittal and was unreasonable on the evidence; that the sentencing judge made a factual error about prior conduct; that the sentencing judge failed to adequately account for protective custody conditions; and that the sentencing judge wrongly applied a statutory provision that prevented good character from operating as a mitigating factor.

  • Whether the guilty verdict on count 2 was inconsistent with the acquittal on count 1, and whether the verdict was unreasonable having regard to the evidence
  • Whether the sentencing judge erred in finding that there had been at least one earlier incident, beyond the offence charged
  • Whether the sentencing judge gave adequate weight to the appellant's conditions of protective custody, including restrictions related to COVID-19
  • Whether the sentencing judge erred in applying s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to exclude good character as a mitigating factor

Decision

The Court unanimously dismissed the conviction appeal. The guilty verdict on count 2 was reconcilable with the acquittal on count 1. The evidence relating to each count differed in a meaningful way: GS made early and consistent complaints about the conduct charged in count 2, whereas the allegation in count 1 emerged only in a second investigative interview, making it less persuasive. The DNA evidence, which showed a mixture from at least three individuals and was not definitive as to the presence of saliva, did not compel the jury to treat count 1 as proved. The jury was entitled to assess each count separately and apply the standard of proof accordingly.

The conviction appeal also failed on the unreasonableness ground. GS's complaints about count 2 were spontaneous and consistent, and his evidence was described as graphic and compelling. The defence's suggestion that GS had been dreaming was unpersuasive, and any gaps or inconsistencies in GS's account were explicable by reference to his young age.

Grounds 2 and 3 of the sentence appeal were dismissed. The sentencing judge had not erred in finding, beyond reasonable doubt, that at least one earlier incident had occurred. Nor had the judge ignored the impact of protective custody: the judgment specifically referred to COVID-19 restrictions, isolation, lack of support, and health difficulties, and those matters were reflected in a substantial reduction to the non-parole period.

Ground 4, however, succeeded. The Court found that the sentencing judge had wrongly applied s 21A(5A), which prevents good character from being treated as a mitigating factor where the offender used that character or reputation to gain access to the victim. The connection between the appellant's good character and his access to GS rested solely on the fact that he was a family friend. GS's father had not given evidence that he assessed the appellant's character, and there was no evidence the appellant had actively cultivated a reputation or befriended the family in order to gain access to GS. The Crown bears an evidential onus to point to evidence establishing the relevant connection before the provision is engaged, and that onus was not satisfied here. The sentence was reduced to eight years imprisonment with a non-parole period of five years and three months.

Orders Made

  • Leave to appeal against conviction granted; appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal against sentence allowed
  • Original sentence quashed and replaced with a non-parole period of 5 years and 3 months commencing 14 October 2019 and expiring 13 January 2025, with a balance of parole of 2 years and 9 months expiring 13 October 2027
  • The appellant is eligible for release to parole at the expiration of the non-parole period

Key Takeaways

  • Split verdicts on separate counts in a sexual assault trial are not automatically inconsistent; where the evidence supporting each count differs in quality or timing, a jury is entitled to convict on one count and acquit on another.
  • Under s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999, good character cannot be excluded as a mitigating factor simply because the offender was known to the victim's family. The prosecution must point to evidence establishing a material connection between the offender's good character or reputation and their access to the complainant.
  • Where an offender is a family friend, the mere fact of that relationship does not satisfy the evidential threshold for s 21A(5A); something more is required to show the offender actively used their standing or reputation to facilitate access.
  • A sentencing judge may make findings about uncharged prior conduct when the evidence supports them beyond reasonable doubt, provided those findings are not treated as aggravating factors and the offender is sentenced only for the offence of conviction.
  • Conditions of protective custody, including COVID-19 restrictions, isolation, and health difficulties, are matters a sentencing court may take into account; the Court of Criminal Appeal confirmed here that adequate weight had been given to those factors through a reduction in the non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61HA, 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3)(e), 21A(3)(f), 21A(5A), 44, Table to Div 1A
- Crimes Amendment (Sexual Offences) Act 2008 (NSW)

Cases:
- M v The Queen (1994) 181 CLR 487
- Mackenzie v The Queen (1996) 190 CLR 348
- Jones v The Queen (1997) 191 CLR 439
- MFA v The Queen (2002) 213 CLR 606
- Pell v The Queen (2020) 268 CLR 123
- R v Markuleski (2001) 52 NSWLR 82
- R v TK (2009) 74 NSWLR 299
- O'Brien v R [2013] NSWCCA 197
- AH v R [2015] NSWCCA 51
- GG v R [2018] NSWCCA 280
- Curran v R [2020] NSWCCA 171
- Collins v R [2020] NSWCCA 198
- BR v R [2021] NSWCCA 279
- Dadley v R [2021] NSWCCA 267
- Booth v R [2022] NSWCCA 113
- R v DSM [2021] NSWDC 283
- R v Duncan [2022] NSWDC 543
- R v Flax [2014] NSWDC 268