AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 22 November 2024

Bhatt v R

[2024] NSWCCA 214

Assault & violence
CRIME APPEAL AGAINST SENTENCE LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Bhatt v R [2024] NSWCCA 214
Court: NSW Court of Criminal Appeal
Date: 22 November 2024
Judge(s): Fagan J, Chen J (principal judgment), Sweeney J

Background

The applicant was convicted of one count of causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years.

The applicant and the victim lived in neighbouring streets in south-western Sydney and had a prior history of conflict stemming from an incident involving the applicant's dog in January 2022. On 17 October 2022, the applicant called out to the victim as he drove past, approached the victim's vehicle with a cricket bat concealed behind his back, and struck the victim on the left side of the face and head, causing him to immediately lose consciousness and fall to the ground.

On 4 April 2024, the sentencing judge in the District Court imposed a term of four years and six months imprisonment with a non-parole period of two years and six months. The applicant sought leave to appeal that sentence on three grounds.

  • Whether the sentencing judge failed to give legally sufficient reasons for declining to find that the applicant's mental health conditions (generalised anxiety disorder, persistent depressive disorder, and agoraphobia) contributed to the offending.
  • Whether the sentencing judge erred in law and fact by failing to treat provocation as a mitigating factor under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), or failed to give sufficient reasons for rejecting it.
  • Whether the sentencing judge made a material factual error in finding that the offending only ceased when members of the public intervened and distracted the applicant.

Decision

Ground 1: Mental health contribution

The applicant tendered a forensic psychologist's report diagnosing him with three conditions and opining that a build-up of anxiety and depression, exacerbated by the victim's conduct over several months, had contributed to the applicant losing control at the time of the offence. The Court held that this opinion was built upon factual assumptions the sentencing judge did not accept, particularly that the victim had engaged in a sustained pattern of rude and provocative behaviour. Because the sentencing judge found the assault was "unprovoked, vicious and sustained," the factual foundation for the psychologist's opinion did not exist, depriving that opinion of any value.

The Court also noted that the applicant's alleged loss of control was a question of fact he bore the burden of proving on the balance of probabilities. The sentencing judge was entitled to prefer her own analysis of the CCTV footage over the psychologist's hearsay account of what the applicant had reported to her, particularly as the applicant did not give evidence at the sentence hearing to substantiate those claims.

Ground 2: Provocation as a mitigating factor

The Court characterised the applicant's complaint under this ground as, at its core, a submission that the facts should have been found differently. Any challenge to factual findings in the Court of Criminal Appeal is constrained to whether the finding was open on the material before the sentencing court. The applicant pointed to evidence that might potentially have supported a different finding but did not engage with why the sentencing judge's findings on provocation were not open to her.

The Court rejected the submission that reasons were legally insufficient. The sentencing judge's remarks clearly and amply explained the conclusion that the assault was unprovoked. Her Honour did not overlook any material matter; rather, she found the facts in a way that entailed rejection of the applicant's contrary version. The Court confirmed the well-established principle that a judge is not required to refer to all evidence led or to indicate which parts are accepted or rejected.

Ground 3: Material factual error

The applicant argued the sentencing judge erred in finding that the attack only ceased when bystanders intervened. The Court read the sentencing judge's reasons fairly and as a whole, concluding that the reference to the "attack" was not limited to the single blow but described the broader course of conduct following the strike. CCTV footage and agreed facts showed the applicant continued to walk around the incapacitated victim making threatening gestures until an unknown couple arrived, with the female calling police and attempting to calm the applicant. That finding was well open on the evidence.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A forensic psychologist's opinion about the contribution of a mental health condition to offending is deprived of value where it rests on a factual account, provided by the offender, that the sentencing judge does not accept.
  • The burden of proving a mitigating factor at sentence, including that a mental health condition contributed to offending, rests on the offender on the balance of probabilities; that question of fact is not displaced by expert opinion alone.
  • Challenging factual findings on appeal requires demonstrating that the finding was not open on the material before the sentencing court; pointing to evidence that could potentially have supported a different result is insufficient without engaging with why the impugned finding was not open.
  • A sentencing judge is not required to address every piece of evidence or specify what is accepted or rejected, provided the reasons clearly explain the basis for the ultimate findings.
  • In dismissing the material factual error ground, the Court confirmed that a sentencing judge's reasons must be read fairly and as a whole, not narrowly or in a compartmentalised way, when assessing whether an error has been established.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(c)
- Criminal Appeal Act 1912 (NSW)

Cases
- Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
- R v Qutami [2001] NSWCCA 353
- Imbornone v R [2017] NSWCCA 144
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Mifsud v Campbell (1991) 21 NSWLR 725
- Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
- Small v K & R Fabrications (W'gong) Pty Ltd [2016] NSWCA 70
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
- Karaali v R [2024] NSWCCA 162
- Ocek v R [2023] NSWCCA 308
- R v Mendez [2002] NSWCCA 415