Bhatia v R [2023] NSWCCA 12

Bhatia v R [2023] NSWCCA 12 · Read the judgment on AustLII

Catchwords: Sentencing – sexual offending – relevance of good character or reputation – close friends and family

Where a close friend or family member commits a sexual offence, they may still be entitled to rely on good character despite the statutory exclusion, provided there is no evidence that they used that good character to get access to the victim. As ever, no prescriptive approach can be set out.

The applicant was convicted after a jury trial of one count of sexual intercourse with a child under 10 years (he was acquitted of a second count at trial). The victim was 6 years old. The applicant was a long-time family friend of the victim’s parents – relevantly to this summary, for more than 10 years before the birth of the victim. He would occasionally care for the child while the victim’s parents were at work. The count for which he was convicted related to one such occasion when he was caring for the victim, in which he put his penis in the victim’s mouth. The victim complained of the relevant event that same night.

The applicant was sentenced to 10 years, with a non-parole period of 6 years. He appealed against both his conviction and sentence, although this summary deals only with one of the grounds dealing with sentencing (plainly enough, then, the conviction appeal was dismissed).

The sentencing judge determined that he could not take the applicant’s prior good character into account.

Crimes (Sentencing Procedure) Act 1999 s 21A(5A) provides that, in the context of child sexual offences, good character or lack of convictions is not to be taken into account in mitigation if the court is satisfied that the factor concerned assisted the offender to commit the offence.

Hamill J (with whom Beech-Jones CJ at CL agreed with some additional reasons; N Adams J agreeing with both) started by stating – ‘emphatically’ – that whether s 21A(5A) applies in a given case depends on the facts in that case (at [129]). Following a review of authorities (at [134]-[140]), and taking into account the second reading speech (at [145]-[146]), his Honour observed that in the present case, the applicant was a family friend for many years before the child was born. There was nothing to suggest that he had originally befriended the family to gain access to the (as-yet-unborn) child (at [141]).

The language of the section is quite broad and is apt to catch more offenders than those who trade on their good reputation to gain access to children. Obvious examples include priests, politicians, teachers, and community leader. It may also apply to babysitters who get access by providing references attesting their good character and reputation. It may apply, in some cases, to family friends and relatives, but only where there is evidence going beyond the mere fact of the relationship, and which suggests the good character or reputation played a role in allowing them access to the child or to commit offences. No prescriptive approach can be set out (at [144]). The section requires that there be a misuse by the offender of his or her perceived trustworthiness and honesty, but there was no such evidence in the current case (at [146]).

Beech-Jones CJ at CL, in his additional reasons (with which N Adams J agreed), observed that for the provision to be engaged, the Court must be ‘satisfied’ of the relevant connection between the good character and the offending. In the context of an accusatorial system of justice, that places a practical if not evidential burden on the Crown to point to evidence of the relevant connection. This might require, if the relevant evidence didn’t come out at trial, leading more evidence on sentence, if necessary (at [14]). Here, there was no such evidence (at [15]).

In those circumstances, the sentencing judge erred in applying s 21A(5A) to this case, and that ground of appeal was upheld. The applicant was resentenced to 8 years, with a non-parole period of 5 years and 3 months.