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Court of Criminal Appeal 6 March 2024

Bhatia v R

[2024] NSWCCA 28

Assault & violenceDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE OFFENDING APPEAL DISMISSED

Citation: Bhatia v R [2024] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 6 March 2024
Judges: Simpson AJA, Button J, Weinstein J

Background

The applicant pleaded guilty to two counts of assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900 (NSW). The offences involved serious physical assaults on his two-year-old stepson, including repeated slapping, grabbing the child by the neck, and throwing him to the ground. The child suffered fractures to his humerus and a thoracic vertebra and was hospitalised for three nights.

The applicant was sentenced in the District Court on 24 March 2023 to an aggregate term of 3 years and 9 months imprisonment, with a non-parole period of 2 years. At the sentencing hearing, competing expert and lay evidence was placed before the court about the applicant's risk of reoffending. The sentencing judge, Payne DCJ, concluded she could make "no finding one way or another" on that question, describing the factor as "neutral."

The applicant sought leave to appeal to the Court of Criminal Appeal on the single ground that Payne DCJ had failed to make any finding at all about the likelihood of reoffending, which he argued was a legal error requiring resentencing.

  • Whether a sentencing judge is legally obliged to make a positive finding about an offender's likelihood of reoffending where the evidence on that question is competing or inconclusive.
  • Whether the sentencing judge's "neutral" finding constituted a finding of fact, or an impermissible refusal to make any finding.
  • Whether "unlikelihood of reoffending" and "prospects of rehabilitation" are distinct concepts requiring separate treatment in a sentencing judgment.

Decision

Weinstein J (with Simpson AJA and Button J agreeing) rejected the appellant's argument on two independent grounds.

First, the court confirmed there is no absolute obligation on a sentencing judge to make a positive finding that an offender is unlikely to reoffend. That obligation arises only where the evidence, relevant and known to the court, supports such a finding. Where competing evidence does not permit the sentencing judge to be satisfied on the balance of probabilities that reoffending is unlikely, no such finding is required.

Second, and alternatively, the court found that Payne DCJ had in fact made a finding. Her use of the word "neutral" was not a refusal to engage with the issue. Rather, it reflected a considered conclusion that the evidence pulled in competing directions and did not support a finding, on the balance of probabilities, in the applicant's favour. That was a finding open on the material before her, and it was clear and transparent.

The court also emphasised that prospects of rehabilitation and the unlikelihood of reoffending are separate and distinct sentencing concepts. A sentencing judge must address them individually, even if they are related. Payne DCJ had done so in this case. No error was established, and the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is not obliged to make a positive finding that an offender is unlikely to reoffend in every case. The obligation arises only where the evidence before the court supports such a finding on the balance of probabilities.
  • Describing the risk of reoffending as "neutral" is itself a finding of fact. It reflects a conclusion that the evidence does not establish, on the balance of probabilities, that reoffending is unlikely, rather than a refusal to engage with the question.
  • Prospects of rehabilitation and the unlikelihood of reoffending are distinct concepts under the sentencing framework. Courts must address them separately, even where the evidence on each overlaps.
  • No error was established where a sentencing judge addressed each mitigating factor individually and made findings that were open on the material, even if those findings did not favour the offender.
  • In dismissing the appeal, the Court of Criminal Appeal noted that "neutral" findings on risk of reoffending had previously survived appellate scrutiny in Zheng v R [2023] NSWCCA 64 and Tonga, Samuel v R [2023] NSWCCA 120, further supporting the legitimacy of that approach.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 21A(3)(g), 21A(3)(i), 21A(5)(AA)
- Criminal Appeal Act 1912 (NSW), s 5
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1914 (Cth), s 16A

Cases
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Meoli v R [2021] NSWCCA 213
- Li v R [2023] NSWCCA 112
- Alenezi v R [2023] NSWCCA 283
- Zheng v R [2023] NSWCCA 64
- Tonga, Samuel v R [2023] NSWCCA 120
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Azzopardi v R [2019] NSWCCA 306
- Masters v R [2019] NSWCCA 233
- R v Storey [1998] 1 VR 359