Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bhatt v R [2024] NSWCCA 214 Hearing dates: 4 November 2024 Date of orders: 22 November 2024 Decision date: 22 November 2024 Before: Fagan J at [1] Chen J at [18] Sweeney J at [107] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIME – Appeal against sentence – One count of cause grievous bodily harm with intent to cause grievous bodily harm – Whether sentencing judge failed to give legally sufficient reasons for declining to find that the applicant's mental health conditions contributed to the offending – Where opinion of forensic psychologist is based upon facts favourable to the applicant not found by the sentencing judge – Whether sentencing judge erred in failing to find that the applicant was provoked and/or whether she provided legally sufficient reasons – Whether sentencing judge made "material factual error" – No error by sentencing judge established – Leave to appeal granted – Appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 Imbornone v R [2017] NSWCCA 144 Karaali v R [2024] NSWCCA 162 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 Mifsud v Campbell (1991) 21 NSWLR 725 Ocek v R [2023] NSWCCA 308 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 Prouten v Chapman [2021] NSWCA 207 R v Mendez [2002] NSWCCA 415 R v Qutami [2001] NSWCCA 353 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Small v K & R Fabrications (W'gong) Pty Ltd [2016] NSWCA 70 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 Category: Principal judgment Parties: Kedar Bhatt (Applicant) Rex (Respondent) Representation: Counsel: B Barrack (Applicant) E Wilkins SC (Respondent) Solicitors: LY Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2022/00310143 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: N/A Date of Decision: 04 April 2024 Before: English DCJ File Number(s): 2022/00310143 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Kedar Bhatt, sought leave to appeal from the sentence imposed on him in respect of one count of cause grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 25 years imprisonment, and a standard non-parole period of 7 years. By way of brief summary, the applicant and the victim in this matter were known to each other, as they resided in neighbouring streets in south-western Sydney. They first met in January 2022, when the applicant's dog ran into the garage of the victim's house and jumped on his wife, and a verbal altercation took place between the pair. On 17 October 2022 at approximately 6:20pm, the applicant called out to the victim who was driving past on his way home from work and approached the victim's vehicle with a cricket bat secreted behind his back. An altercation took place between the applicant and the victim, which culminated in the applicant striking the victim on the left side of his face and head with the cricket bat, causing the victim to immediately lose consciousness and fall to the ground. On 4 April 2024, the applicant was convicted and sentenced by English DCJ ('the sentencing judge') to a term of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 6 months, commencing 3 April 2024. At the sentence hearing, the applicant relied upon a report from a forensic psychologist, in which the opinion was expressed that the applicant's "underlying mental health issues relating to generalised anxiety and depression had contributed to his loss of control at the time of the incident". By notice of appeal dated 12 September 2024, the applicant sought leave to appeal against his sentence on the following grounds: 1. That the sentencing judge erred in failing to provide reasons for declining to find that the applicant's mental health contributed in any way to the offending; 2. That the sentencing judge erred in her application of law and fact in failing to consider provocation as a mitigating factor at sentence under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW); and 3. That the sentencing judge made a material factual error that informed her reasoning such that, absent that error, some other lesser sentence ought to have been imposed. The Court (per Chen J, Fagan and Sweeney JJ agreeing) granting leave to appeal against the sentence imposed and dismissing the appeal, held: As to ground 1: 1. The opinion expressed by the forensic psychologist about the contribution of the applicant's mental health conditions assumed various matters favourable to the applicant – including that the victim had engaged in a "pattern of behaviour" over several months which the applicant considered to have been "rude, offensive and disrespectful towards him". The sentencing judge did not find the facts in accordance with what the applicant told the forensic psychologist, and upon which her opinions were based – namely, her Honour did not accept that there was provocative conduct by the victim in the way the applicant alleged, but rather found that the assault was "unprovoked, vicious and sustained" – which deprived the forensic psychologist's opinion "of any value": [82]-[94] (Chen J). 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 cited. 1. The applicant's loss of control was not a subject of "unchallenged opinion" that the learned judge was bound to accept, but a question of fact that the applicant bore the burden of proving on the balance of probabilities. Her Honour was entitled to prefer her own analysis of what can be seen on the CCTV over the forensic psychologist's hearsay reportage of the applicant's claim that he lost control, particularly in circumstances where he did not give evidence to substantiate what was reported to the psychologist: [5]-[8] (Fagan J). R v Qutami [2001] NSWCCA 353; Imbornone v R [2017] NSWCCA 144 cited. As to ground 2: 1. Stripped to the essentials, the applicant's complaint was no more than that the facts should have been found differently. The difficulty with this approach is that any challenge to factual findings in this Court is constrained by the test to be applied – namely, "whether the finding was open on the material before the court at first instance". Aside from pointing to some evidence said to potentially support a different finding or findings (if accepted), the applicant did not engage with why the sentencing judge's findings on provocation – intermediate and final – were not open: [67]-[68] (Chen J). DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 cited. 1. The applicant also submitted that the sentencing judge failed to give legally sufficient reasons for why the applicant's provocation case was not accepted. Contrary to what was submitted by the applicant, the sentencing judge's reasons clearly and amply explained why her Honour concluded that the applicant's attack upon the victim was "an unprovoked, vicious and sustained assault". Her Honour did not "overlook" any material matter, but found the facts in a way that entailed rejection of the contrary version advanced on behalf of the applicant. It has long been recognised as "plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected": [13]-[14] (Fagan J); [69]-[77] (Chen J). Mifsud v Campbell (1991) 21 NSWLR 725; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 cited. As to ground 3: 1. The applicant submitted that the sentencing judge made a material factual error in finding that the offending only stopped when members of the public intervened and distracted the applicant. This finding, however, was well open to the sentencing judge based, as it was, firmly upon the agreed facts and the CCTV footage of the incident: [15]-[16] (Fagan J); [101]-[104] (Chen J). JUDGMENT 1. FAGAN J: I agree with Chen J. 2. As to ground 1 (failure to provide reasons for declining to find that the applicant's mental health contributed to his offending), the applicant sought to establish a causal relationship by tendering in the sentence proceedings a report of Ms K North, psychologist. Ms North diagnosed the applicant with General Anxiety Disorder, Persistent Depressive Disorder and Agoraphobia, with increasing symptoms during the five years preceding the offence and symptoms still present 18 months later when she examined him. 3. Ms North expressed the following opinion: Mr Bhatt's symptoms of anxiety and depression had also been exacerbated in the months preceding the offence by the behaviour of the victim, and […] this build-up of anxiety had contributed to him losing control of his emotions and behaviour at the time of the offence. Mr Bhatt's use of alcohol preceding the incident was also identified as a secondary contributing factor. 1. Ms North recited the applicant's assertions about repetitive rude gestures and insults from the victim over several months. She recorded the applicant's claim that immediately prior to striking the victim with a cricket bat he had become increasingly agitated because the victim denied having made rude gestures. Ms North expanded her opinion as follows: It was my opinion that Mr Bhatt's underlying mental health issues related to generalised anxiety and depression had contributed to his loss of control at the time of the incident, with Mr Bhatt describing having lost control of his emotions and behaviour subsequent to the victim's denial of past behaviours. He identified feelings of frustration had led to anger at the denial and reported he did not know why he became so upset, stating he had never lost control of his emotions or acted aggressively towards anyone in the past. It was my opinion that a build-up in his symptoms of anxiety and depression over several months had led to Mr Bhatt feeling overwhelmed at the time. […] It was my opinion Mr Bhatt's underlying psychological issues had contributed to his offending behaviours, particularly in relation to an escalation in symptoms of anxiety and depressive symptoms over several months in response to the behaviour of the victim. Mr Bhatt's escalating anxiety had resulted in increased levels of physiological arousal, including physiological tension and difficulties relaxing. It was my opinion this physical tension had predisposed him to overacting on the day of the offence when provoked by the victim's behaviour. This was felt to be consistent with Mr Bhatt's report of having lost control of his anger, indicating his aggression to be reactive in nature and driven by his heightened emotions. Mr Bhatt's use of alcohol preceding the incident was also identified as a contributing factor and had likely impacted on his judgement and impulse control at the time of the incident resulting in his loss of control of his emotions and behaviour. 1. It is apparent that in Ms North's view a causal relationship between the applicant's mental disorders and the offending could be concluded from what the applicant described to her as a loss of self-control at the time of the incident, in response to perceived provocative behaviour of the victim, both immediate and longer term. Contrary to the applicant's submission in this Court, the applicant's loss of control was not a subject of "unchallenged opinion" that the learned judge was bound to accept. Loss of control was a question of fact. It was an essential premise of the psychologist's opinion about causality. The applicant bore the burden of satisfying the sentencing judge of that premise, on the balance of probabilities. He failed to do so. 2. The Remarks on Sentence include the following [with paragraph numbers added for ease of reference]: 1 There was reference in Ms North's report that the offender was intoxicated, there is no evidence of intoxication and I find that the offender acted with precision not consistent with intoxication. 2 The offender seeks to rely upon provocation in mitigation. The facts state that the victim first met the offender on 29 January 2022 when the offender's dog ran into the victim's premises and jumped on his wife frightening her and the children and that whilst the offender was retrieving the dog a verbal altercation took place between the offender and the victim. The offender states that there were verbal [exchanges] between the two over the following months. The statement of police facts were tendered, those were not the facts which were agreed upon for the purpose of sentence. 3 I am not prepared to find that provocation is made out. I find that this was an unprovoked, vicious and sustained assault. The CCTV depicts the [victim] driving down the road and the offender approaching him having secreted the cricket bat behind his back calling out for the victim to stop. I find it was a most deliberate act on the part of the offender. 4 […] I am not prepared to make any finding that the state of the mental health of the offender in any way contributed to his offending. 1. I have omitted from those extracts one sentence that is concerned solely with the applicant's subjective background. Paragraphs 2 and 3 are considered below in relation to ground 2 (failure to consider provocation as a mitigating factor). Her Honour's findings that the offender acted "with precision" and that he initiated the interaction with the victim by a "most deliberate act", involving the premeditated concealment of his weapon, were open to her. Those findings were supported by the CCTV footage of the incident. Her Honour was entitled to prefer her own analysis of what can be seen on the CCTV over Ms North's hearsay reportage of the applicant's claim that he lost control. It was open to her Honour to give little weight to what the applicant told Ms North about the incident: R v Qutami [2001] NSWCCA 353 at [58]-[59]; Imbornone v R [2017] NSWCCA 144 at [57]. The applicant did not give evidence to substantiate that the victim had conducted himself as he reported to the psychologist, or that the applicant's anxiety had built up as a result, or that "he lost control of his emotions and behaviour at the time of the offence", or that he "felt overwhelmed at the time". 2. The judge's express findings that the applicant acted with precision, unprovoked and in a "most deliberate" way constitute an ample statement of reasons for not being satisfied on the balance of probabilities that the applicant's mental health was causative. 3. In ground 2, the complaint of "failing to consider provocation as a mitigating factor" must be intended as an assertion that her Honour should have found provocation to be an operative feature of the case, to be weighed with other sentencing factors. It is clear from the portion of the Remarks on Sentence quoted above that the learned judge turned her mind to whether the applicant had been provoked in circumstances and to a degree that could bear upon penalty – and found that he had not. 4. Her Honour's observation that the police statement of facts had not been agreed (see par 2 at [6] above) was no doubt directed to the paragraph of the police facts that was read out during the applicant's counsel's submissions in the sentence proceedings, as follows: The accused states that over the last three or four months the victim has driven past him between 6.30am and 7.30am every morning Monday to Friday swearing at him, beeping his horn and saying racial slurs. About 6.24pm on Tuesday 17 October 2022 the accused was home alone putting up lights around his home for the upcoming holiday. As his son had recently borrowed his ladder he was using a garden chair to stand on and a cricket bat to push over the cables over the hooks that were attached to the external guttering of his property. As the accused was putting the chair back into the garage the victim has slowly driven past the accused's home where the accused states the victim stuck his middle finger up at him. 1. The Crown acknowledged to her Honour that that passage "is an accurate summary of what's said in the ERISP". The applicant's assertions in the ERISP about provocative conduct of the victim, on repeated occasions before the incident and at the commencement of the confrontation that culminated in the offence, were clearly not agreed facts. The applicant's untested assertions about provocative behaviour were susceptible to being given little weight, in accordance with R v Qutami and Imbornone v R. As this was a mitigating circumstance the applicant bore the onus. 2. Provocation that may be relied upon in mitigation of sentence for an offence of violence is a broader concept than extreme provocation under s 23 of the Crimes Act 1900 (NSW) as a partial defence to a charge of murder. To establish the mitigating circumstance the applicant in the present case would at least have had to satisfy the sentencing judge, on the balance of probabilities, that he was subjected to offensive behaviour of the victim on some occasion or occasions, reasonably proximate to the offence, and that that behaviour was a cause or motivation for his offending conduct. If some degree of causative effect were established, the weight to be given to the factor of provocation would depend upon the objective degree of seriousness of the victim's provocative conduct, the temporal proximity of that conduct to the commission of the offence and the degree of violence in the applicant's reaction. The conduct of an offender may be so far out of any reasonable proportion to the provocative behaviour of the victim that no mitigation may arise: R v Mendez [2002] NSWCCA 415 at [16]. Depending upon the evaluation of all circumstances, a finding that provocation was at least a contributing cause of the offence could reduce the offender's culpability and the need for specific deterrence. 3. Here, the mitigating factor did not come into play because the judge was not satisfied of threshold requirements. In par 2 of the passage extracted from the Remarks at [6] above, her Honour only accepted that there had taken place the limited pre-offence interaction between the applicant and the victim as described in the agreed facts. Her Honour did not accept the matters that "The offender states …", being his assertions about long-term and immediately proximate provocation. The applicant's submission that "the additional matters raised by the applicant in his ERISP were not considered by her Honour" is incorrect. Those matters were considered. They were recognised as untested assertions of the applicant and they were not accepted. 4. Her Honour was unpersuaded as to a causal relationship between any alleged behaviour of the victim and the applicant's offending. The offending was found to have been "an unprovoked, vicious and sustained assault". The CCTV footage shows the applicant hailing the victim as he drove along the street, initiating the confrontation by snatching the victim's phone through the driver-side window and then menacing the victim with the cricket bat for several minutes before clubbing him to the ground. It was open to her Honour to find that evidence entirely inconsistent with the applicant having been provoked by the victim. 5. In relation to ground 3, the alleged erroneous finding of fact is expressed in the Remarks as follows: The attack upon the victim only ceased when others intervened and distracted the offender from continuing to further threaten or assault the victim. 1. It is clear from the CCTV that the applicant was not continuing his physical attack on the victim at the time when two neighbours came to the scene. Her Honour had viewed the CCTV recording and was well aware of that. When the neighbours arrived the victim had recovered consciousness and the applicant was still close to him, moving around in an agitated manner, wielding the cricket bat threateningly and abusing the victim. On a fair reading, the intent of the impugned sentence is that the arrival of the two other people prevented the conflict going any further, not that there was a continued physical engagement that had to be broken up. It is futile for the applicant to propose a construction of this sentence that would attribute to the learned judge a misunderstanding of what is plainly recorded on the footage. 2. The appeal grounds are without merit. 3. CHEN J: On 11 October 2023, following a plea of guilty entered in the Campbelltown Local Court, Kedar Bhatt ('the applicant') was committed to the District Court to be sentenced for one count of cause grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 25 years imprisonment, with a standard non-parole period of 7 years. 4. On 4 April 2024, the applicant was convicted and sentenced by English DCJ ('the sentencing judge') to a term of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 6 months, commencing 3 April 2024. The non-parole period expires on 2 October 2026 and the head sentence on 2 October 2028. 5. The applicant seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed, arguing that the sentence imposed is marred by a series of factual errors and otherwise inadequately reasoned. The ultimate submission of the applicant is that he should receive a lesser sentence, to be served by way of intensive correction order. 6. In my view, although leave to appeal should be granted, the appeal should be dismissed: the sentencing judge did not make the errors alleged and the reasons were legally sufficient. Background The offending 1. The applicant was sentenced in accordance with a Statement of Agreed Facts (the 'agreed facts'). The agreed facts expressly "incorporated" CCTV footage of the incident, which was played during the sentence hearing (agreed facts at [42]). What follows is drawn from those agreed facts and the sentencing judgment. 2. The applicant was 59 years old at the time of the offending conduct. The victim in this matter, Fouad Al Hilali, was 43 years old and resided in a neighbouring street to the applicant in a suburb in south-western Sydney with his wife and four children. The applicant and the victim are known to each other, having first met in January 2022, when the applicant's dog ran into the garage of the victim's house and jumped on his wife, frightening her and their children. Whilst the applicant was retrieving the dog from the victim's property, a verbal altercation took place between the pair. 3. On Tuesday 17 October 2022 at approximately 6:20pm, the victim was driving home from work down the street where the applicant resided, which is adjacent to the street where the victim resides with his family. As he drove past, the applicant called out to the victim, and the victim slowed down before he stopped his car. The applicant walked over towards the victim's car, carrying a cricket bat behind his back to hide it. The applicant then yelled at the victim through the open window on the driver's side of the victim's car. As the victim began to drive away, the applicant yelled out, "wait, wait, wait, wait". 4. The applicant then walked alongside the victim's car, which was moving slowly, and said, "what's your problem, why you do this always" and called the victim a "bastard". The victim stopped his car and produced his mobile phone to start recording the incident. The applicant again approached the window on the driver's side of the victim's car and snatched the phone. The victim got out of the car and managed to regain possession of his phone. 5. An altercation then took place between the applicant and the victim, during which the applicant raised the cricket bat he was carrying and moved it towards the victim in a threatening manner, causing the victim to push the applicant away out of fear. The applicant said, "what is wrong with you, why you do this always", and grabbed the victim's phone from his hands and threw it on the ground. The applicant raised the cricket bat towards the victim, again in a threatening manner, as the victim bent over to pick his phone up. 6. The victim attempted to walk away from the applicant, however the applicant followed him and knocked the phone out of his hands again. As the victim attempted to pick his phone up from the ground, the applicant once again swung the cricket bat at him. The victim yelled out in pain whilst grabbing his head. The sentencing judge later found, and described, this as the "first blow". 7. The victim pushed the applicant away again as he moved to stand on the other side of his car, but the applicant continued to follow the victim, saying "what is wrong with you". The victim continued to move away from the applicant, but the applicant continued to walk towards him and attempted to knock the phone out of his hands once again. The applicant then raised the cricket bat over his head in a threatening manner, as if he was about to hit the victim, and said "I will kill you, okay". The victim told the applicant that he would call the police, and the applicant replied, "what's wrong with you, you tell me". The applicant again raised the cricket bat above his head towards the victim in a threatening manner, and the victim stepped backwards away from him, fearing that he would be struck with the bat. The applicant then said to the victim, "don't do that again please, every morning when I come with my dog, you get your phone and you say you bastard and this". 8. The victim moved towards the back of the car as he attempted to get away from the applicant, but was followed by the applicant who again attempted to grab the phone out of the victim's hand. The applicant then lifted the cricket bat above his head. He held the bat with both hands at the right side of his head in a baseball-style stance and made a swinging motion towards the victim, striking the victim on the left side of his face and head with the bat. 9. The victim immediately lost consciousness and fell face first to the ground. As the victim was lying unconscious on the ground, the applicant continued to yell at him, including calling him a "bastard". The applicant also kicked the side of the victim with his left foot as he was lying unconscious on the side of the road, before walking away and leaving the victim there. 10. The victim started to regain consciousness and was visibly injured and disoriented when the applicant walked back over holding a phone. The applicant called '000', but the call was eventually terminated by the operator because the applicant was still speaking to the victim rather than responding to the operator. The applicant then called '000' for a second time and requested police attend. However, when the operator asked the applicant what had happened, he responded with details about what he said the victim had done in the past, rather than details of the altercation that had just occurred. The operator asked the applicant whether there had been any physical violence involved, to which he responded: "no, no, no physical violence, I don't know". 11. A car tried to drive past the area where the altercation had occurred but could not do so because it was being blocked by the victim's car. The victim, who was too unwell to move his car, was resting on the bonnet of his vehicle when the applicant yelled out, "hey, move your car, you bastard" and raised the cricket bat, causing the victim to think that the applicant would hit him with the bat again. 12. Eventually, a male and female who lived in a nearby house came out and moved the victim's car. The female called the police and they both attempted to calm down the applicant. The applicant continued to walk around the victim as he sat on the ground, repeatedly waving his hands and pointing at the victim in a threatening manner. The applicant left the area and the male and female stayed with the victim until police arrived at approximately 6:30pm. 13. Upon arrival, police interviewed the applicant, who made admissions to the offending. He was taken to Liverpool Police Station where he participated in an electronic interview during which he again made various admissions and told police that what he had done was wrong. 14. The victim was taken to Liverpool Hospital to have his injuries treated. He had suffered jaw deformities, being a non-displaced fracture of the body of the left mandible and root of tooth 34, and a further fracture involving the posterior wall of the left maxillary sinus, causing a hematoma of the buccal space. The victim also sustained a laceration to the left side of his face, which did not require surgery; an abrasion to the top of his head; and the loss of two teeth. He underwent surgery on 20 October 2022 where a metal plate was inserted into his jaw to correct the jaw deformities and spent a total of four days in hospital. The sentence hearing 1. At the sentence hearing, the applicant's counsel read onto the record a part of what the applicant is recorded to have said during the police interview conducted on 17 October 2022 following his arrest (the 'police facts'). During that interview, the applicant essentially said two things. The first was that there had been interactions in the months following the original incident between the applicant and the victim in January 2022. The second was that, at the time the victim drove past the applicant's house in the early evening of 17 October 2022, "the [applicant] states the victim stuck his middle finger up at him". 2. The applicant was not called to give evidence. The sentencing judgment 1. Given the sentencing judgment does not have a medium neutral citation and is in transcript form, the references to the page numbers in that judgment are expressed as J1 etc. 2. After noting the maximum penalty and standard non-parole period for an offence under s 33(1)(b) of the Crimes Act, and that they operate as legislative guideposts, her Honour then proceeded to make findings of fact about the offending conduct in line with the agreed facts, as outlined above (J1-6). 3. The sentencing judge then considered the victim impact statement which had been prepared by the victim (J6). The victim advised that his sleep, work and hearing have all been impacted by the applicant's offending, and that he continues to suffer pain to his face and head. The sentencing judge found that "the victim suffers ongoing physical and psychological injuries as a result of the injuries inflicted upon him by this offender" (J6). 4. The sentencing judge next considered the applicant's subjective circumstances (J6-8). In doing so, her Honour referred to a report prepared by Ms Kris North, forensic psychologist, dated 4 March 2024; a Sentencing Assessment Report dated 23 February 2024; and a letter written by the applicant to the Court dated 19 February 2024. 5. At the time of sentence, the applicant was 61 years of age and only had one previous conviction for high range drink driving in 1999. He was otherwise found to be a person of good character in terms of committing violent offences (J6). The applicant was born in India, and described an impoverished upbringing where he was exposed to domestic violence between his parents and suffered physical abuse at the hands of his older siblings. After his father's death at the age of 13, the applicant was required to leave school and undertook vocational training as a chef. He worked as a house servant until the age of 20, and then as a chef in a hotel in Delhi until the age of 25. In 1988, he migrated to Australia, with his wife and two of his children arriving two years later in 1990. His youngest child was born in Australia, and he became an Australian citizen in 1990. 6. The applicant reported that during his 40s, he would consume alcohol on a daily basis but has maintained sobriety since engaging with a psychologist in 2023. When the applicant attended on Ms North for the purpose of this assessment, he was said to be presenting with significant symptoms of anxiety and depression, and had expressed suicidal ideations following the offending, however Ms North considered him to be at a low risk of self-harm (J7). 7. Ms North opined that the applicant's impoverished childhood and adversity led him to experience self-esteem issues throughout his life and pre-disposed him to suffer from general anxiety. The sentencing judge noted, however, that the applicant has been able to maintain consistent employment throughout his life, has a stable marriage and presents as a well-respected man in the character references provided to the Court. 8. The sentencing judge considered a number of letters of reference that had been provided by the applicant's friends and family, and noted that all of them were consistent in the opinion that the applicant's actions on the night in question were out of character. 9. In assessing the objective seriousness of the offending, the sentencing judge found that the assault was "unprovoked and particularly vicious"; it involved an ongoing course of conduct; that the applicant "exacted serious harm with the use of a weapon", significantly aggravating the offending; that the injuries sustained by the victim were serious; and that the attack only ceased when strangers intervened and distracted the applicant from continuing to threaten and assault the victim (J8-9). Overall, her Honour found that the offending fell at the mid-range of objective seriousness (J9). 10. The sentencing judge noted that the applicant entered his guilty plea at the earliest opportunity and was therefore entitled to a 25% discount on the sentence imposed (J9). 11. With reference to the letter written by the applicant to the Court and the subjective material tendered on his behalf, the sentencing judge found that the applicant was "genuinely remorseful and contrite" and that he demonstrated victim empathy. Her Honour further found that he was a person of prior good character, entitling him to a degree of leniency, and that he had good prospects of rehabilitation and is "highly unlikely" to reoffend in this manner again (J10). 12. The sentencing judge noted that in Ms North's report, she had opined that the consumption of alcohol prior to the offending was a contributing factor and would likely have impaired the applicant's judgment and impulse control, resulting in him losing control of his emotions (J8). The sentencing judge found, however, that there was no evidence of any such intoxication, but rather that the applicant "acted with precision not consistent with intoxication" (J10). 13. The applicant had sought to rely upon provocation as a matter in mitigation. However, the sentencing judge was not prepared to find that provocation had been made out. Rather, her Honour considered that the offending involved "an unprovoked, vicious and sustained assault" and, later, a "most deliberate act on the part of the [applicant]" (J10). 14. The sentencing judge found that the applicant's deprived childhood and exposure to violence operated to reduce his moral culpability for the offending (J10-11). However, her Honour was not prepared to make a finding that the applicant's mental health conditions were a contributing factor to his offending, which would have had the effect of further reducing his moral culpability (J11). 15. Noting the nature of the offending, the maximum penalty and standard non-parole period that applied and the fact that general deterrence, denunciation and punishment were to be given significant weight in the sentencing exercise, the sentencing judge found that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act') – that no sentence other than one of imprisonment is appropriate – had been passed (J11). 16. Her Honour noted that the applicant had sought the imposition of an intensive correction order, which would require a sentence of 2 years or less. Having considered all of the relevant factors, however, the sentencing judge found that the only appropriate sentence is one of full-time imprisonment. Her Honour considered that although out of character, the applicant had to be held accountable for his actions and punished for the violence perpetrated on the victim (J11). 17. Her Honour made a finding of special circumstances on the basis that the applicant is not young; this was his first time in custody; and he suffers from anxiety and depression, which will be exacerbated by his incarceration (J11-12). 18. As noted above, the sentencing judge imposed a sentence of 4 years and 6 months, with a non-parole period of 2 years and 6 months (J12). The appeal: an overview of the grounds 1. The applicant's notice of appeal contains three grounds – namely, that the sentencing judge: 1. failed to "provide reasons for declining to find that the applicant's mental health contributed in any way to the offending" (ground 1); 2. erred "in her application of law and fact in failing to consider provocation as a mitigating factor at sentence" under s 21A(3)(c) of the CSP Act (ground 2); and 3. made three "material factual errors that informed her reasoning", with the consequence that "some other lesser sentence ought to have been imposed" (ground 3). 1. I will deal first with ground 2. The short reason for doing so is that although ground 1 is framed as relating to the applicant's "mental health" issues, what underlay the sentencing case on that issue was the applicant's provocation argument – which is the subject matter of ground 2. Ground 2: failing to consider provocation as a mitigating factor Introduction 1. This ground of appeal, as framed, is directed to an alleged error by the sentencing judge in "failing to consider provocation as a mitigating factor at sentence". Contrary to what was alleged by this ground, however, it is plain that the sentencing judge did consider provocation: her Honour noted that the applicant "seeks to rely upon provocation in mitigation" but, in the result, was "not prepared to find that provocation is made out" (J10). 2. Notwithstanding the manner in which the ground of appeal was expressed, the applicant's written submissions, however, sought to impugn the sentencing judge's finding on the provocation issue on an appreciably wider footing, broadly making two arguments: first, the applicant argued that the police facts, and other material that was argued to be supportive of the applicant's case that he was provoked, was "not considered" and "not engaged with at all" (applicant's submissions at [31] and [34]); and, secondly, there was evidence capable of demonstrating that there had been provocation and the sentencing judge "failed to provide reasons for why certain evidence in support of… provocation was disregarded" (applicant's submissions at [43]). 3. Before dealing with these matters, some further comments, by way of introduction, are in order. In respect of each of these further two arguments, the applicant raised a number of subsidiary ones. Thus, although I have reduced the applicant's arguments (broadly) to two, there are in truth appreciably more than that. There is a related issue – one of approach. The thrust of what the applicant commonly sought to argue was, in substance and in form, a complaint about facts – in particular, a suggested failure of the sentencing judge to make intermediate and ultimate findings favourable to the applicant in connection with the issue of provocation – despite no ground of appeal directed to such an issue. Furthermore, and following on from this last matter, at no point, in either written or oral submissions, did the applicant confront that reality nor (in any event) the fact that an appeal to this Court is not by way of rehearing, but constrained by the test to be applied where there is a challenge to factual findings: see [67], below. The police facts and other evidence 1. The applicant submitted that the version of his interactions with the victim contained within the police facts was "not considered" because the sentencing judge observed that "they were not part of the agreed facts" – something that was argued to be "further supported by the absence of any mention of them" in the reasons of the sentencing judge (applicant's submissions at [31] and [34]). 2. The submission that the police facts were "not considered" is opaque: the written submissions did not identify the nature of any alleged error committed by the sentencing judge. During submissions in this Court, however, the argument advanced was that the sentencing judge "erred in law by rejecting inferentially" the police facts (Tcpt, 4 November 2024, p 6(44)-(45)). Again, however, the submissions did not identify the nature of the alleged legal error – but the argument appeared to involve two complaints. 3. The first complaint was that it was in some way 'wrong' for the sentencing judge to have rejected that evidence, possibly because it was admitted without objection. I do not accept this argument. The process of determining the facts is for the sentencing judge and even in a situation (which is not the present case, I emphasise) where the evidence is all one way, there is no rule of law that a court must believe that evidence: a judge can "accept all, or some, or none of it": McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8, 9. Further, no "error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another": Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151 and 156. 4. In relation to this complaint, the following should also be noted. The applicant sought to suggest that the Crown "accepted" what was said in the police facts to be "an accurate summary" (Tcpt, 4 November 2024, p 6(46)-(48)). That submission, as far as it goes, may be accepted: the Crown accepted before the sentencing judge that it was "an accurate summary of what's said in the ERISP" (Tcpt, 6 March 2024, p 6(1)). But the Crown did not accept, as the applicant's submission sought to imply, that the matters referred to in fact occurred – understandably so, given the applicant did not give evidence and the version remained "untested". 5. The position is not different, in my view, in relation to the "other material" which the applicant described as "significant evidence" and suggested to be capable of supporting an ultimate finding that the victim provoked the applicant: the applicant argued that this material was "not engaged with at all" (applicant's submissions at [34]). The focus of this submission was upon material in the agreed facts, particularly a selection of some of the verbal exchanges between the applicant and the victim. As with the police facts, so too with this evidence, the process of finding the facts was for the sentencing judge, and her Honour did not "err in law" because she accepted some, but rejected other, evidence: see the authorities cited in [63], above. No attempt was made to demonstrate why the findings of the sentencing judge were not open. Further, the premise of the submission (that material was "not engaged with") is, in my view and in any event, inapt: the explanation for the approach of the sentencing judge lies in what evidence she did accept and what findings she did make. 6. The second complaint raised, argued to demonstrate that the sentencing judge "erred in law", was that, contrary to the findings made, her Honour ought to have found the facts in the way argued by the applicant and, having done so, concluded that provocation had been demonstrated – thereby entitling the applicant to rely upon that matter to mitigate the sentence imposed upon him. This argument is reflected in the applicant's submission to the effect that all the material that was potentially favourable to the applicant's case on provocation "support an assertion that, at the very least, there was an arguable factual basis for a finding that the victim had engaged in provocative conduct" (applicant's submissions at [37]). 7. Stripped to the essentials, and putting to one side the fact that the notice of appeal does not raise such a challenge, the applicant's complaint was no more than that the facts should have been found differently. To make good this argument, the Court was taken to aspects of the evidence that, if accepted, might have supported different findings on the issue of provocation. A difficulty with that approach is that the appeal to this Court requires demonstration of error and any challenge to factual findings is constrained by the test to be applied – namely, "whether the finding was open on the material before the court at first instance": DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [131]; see also Ocek v R [2023] NSWCCA 308 at [116] and Karaali v R [2024] NSWCCA 162 at [82], and the authorities there referred to. 8. Here, however, as the Crown submitted, aside from pointing to some evidence said to potentially support a different finding or findings (if accepted), the applicant did not engage, or grapple, with why the sentencing judge's findings on provocation – intermediate and final – were not open. To be clear, at no point, in either the written or oral submissions, did the applicant submit they were not. In those circumstances, the applicant's challenge, such as it is, must be rejected. In any event, I would simply add that the approach that the sentencing judge took, and the findings she made, are not unexpected given the way the matter was conducted: for the Crown, the agreed facts were tendered before the sentencing judge and the CCTV footage that formed part of those agreed facts was played; for the applicant, additional material was tendered in his case, but he was not called to give evidence. In those circumstances, it is unsurprising that the sentencing judge dealt with the matter in the way that she did: that is, by rejecting the version sought to be established by the applicant through the additional material and acting upon, and making findings that aligned with, the agreed facts including the CCTV footage so as to find that "this was an unprovoked, vicious and sustained assault" (J10). The sufficiency of the reasons 1. The applicant's next, and overarching, argument was that the sentencing judge failed to give legally sufficient reasons for why the applicant's provocation case was not accepted. 2. It is unnecessary to address in any detail the well-established principles governing the adequacy of reasons in the present context. However, given the tenor of the applicant's argument, the following three matters warrant emphasis. First, an assessment of the sufficiency of reasons is not directed to the correctness of the result, but the judicial explanation for how that result was reached. Secondly, it is not the function of an appellate court to set the standards as to the level of detail required for there to be legally sufficient reasons; rather, "it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power": Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]. Thirdly, whilst recognising that the extent and content of the reasons required turns upon the jurisdiction which the court is exercising and the particular circumstances and matters in issue, nevertheless it will "ordinarily be sufficient if…by [their] reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which [they have] acted": Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 273 ('Soulemezis'). 3. The reasoning of the sentencing judge on the provocation issue commenced with her Honour's reference to, and setting out of, the agreed facts – facts that included: that the applicant initiated the contact on the day of the incident by calling "out to the victim as he drove past, and the victim slowed down and stopped the car"; that the applicant "yelled at the victim through the open window on the driver's side of the car"; and that the "victim began to drive away, and the [applicant] yelled 'Wait, wait, wait, wait' to the victim" (J1-2). The sentencing judge then recounted other conduct of the applicant including, on one of the occasions that the applicant raised the cricket bat over his head in a threatening manner, the applicant stating to the victim: "I will kill you, okay" (J3). 4. The reasons of the sentencing judge on the provocation issue include the following (J8-9): … the [applicant] approached the victim carrying the cricket bat hidden behind his back. He held the bat above his head with both hands and he swung the bat towards the victim striking him to the left side of the face. There had been an earlier blow and between that first blow and the more serious second blow he could have walked away, he did not, he continued the assault. It was as a result of the second blow that the victim lost consciousness and fell to the ground. Despite the victim being unconscious he called the victim a bastard and he raised his leg, and he kicked the victim whilst he [was] laying unconscious on the ground. When the victim regained consciousness the [applicant] continued to threaten him with the bat. I find the assault was unprovoked and particularly vicious. With respect to defence counsel's submissions, which I reject, this was not short lived, it was an ongoing course of conduct. [The applicant] exacted serious harm with the use of a weapon… 1. The provocation issue was also addressed by the sentencing judge at J10 – as follows: The [applicant] seeks to rely upon provocation in mitigation. The facts state that the victim first met the [applicant] on 29 January 2022 when the [applicant's] dog ran into the victim's premises and jumped on his wife frightening her and the children and that whilst the [applicant] was retrieving the dog a verbal altercation took place between the [applicant] and the victim. The [applicant] states that there were verbal exchange[s] between the two over the following months. The statement of police facts were tendered, those were not the facts which were agreed upon for the purpose of sentence. I am not prepared to find that provocation is made out. I find that this was an unprovoked, vicious and sustained assault. The CCTV depicts the [victim] driving down the road and the [applicant] approaching him having secreted the cricket bat behind his back calling out for the victim to stop. I find it was a most deliberate act on the part of the [applicant]. 1. In my view, once the reasons of the sentencing judge are examined, it is clear that her Honour has explained why she concluded that the applicant had not demonstrated provocation, and why she made the findings that she did that were to the opposite effect. The key findings were that the applicant was the one who approached the victim, calling out to him to stop as he was driving by and that, the victim having done so, the applicant approached him with the cricket bat hidden behind his back; after the first blow, the applicant could have walked away but he did not, inflicting "the more serious second blow"; the applicant kicked the victim as he lay unconscious on the ground; when the victim regained consciousness, the applicant continued to threaten him with the bat; the assault was "not short lived", but represented "an ongoing course of conduct" by the applicant. 2. Additionally, in terms of reasons, the sentencing judge: (a) identified the issue for determination (the applicant "seeks to rely upon provocation in mitigation"); (b) identified what the agreed facts record ("[t]he facts state…"); (c) understood that the applicant argued for more extensive findings in connection with the interactions between him and the victim, and that the police facts had been tendered in aid of that argument (the applicant "states that there were verbal exchange[s] between the two over the following months" after the incident involving the applicant's dog on 29 January 2022, but that "those were not the facts which were agreed upon for the purpose of sentence"); and (d) thereafter resolved the issue ("I am not prepared to find that provocation is made out") (J10). The sentencing judge then explained why ("I find that this was an unprovoked, vicious and sustained assault… [and] was a most deliberate act on the part of the [applicant]") (J10). 3. In my view, it is not correct to say, as the applicant did, that the sentencing judge gave insufficient reasons for rejecting the applicant's case on provocation. The explanation directly lay in the facts being found that accorded with those contained in the agreed facts and as further borne out by what was in the CCTV footage. The reasons clearly and amply explained why her Honour concluded that the applicant's attack upon the victim was an "unprovoked, vicious and sustained assault": in short, the sentencing judge was unpersuaded that the interactions that the applicant had with the victim – both before and after felling him with the cricket bat – admitted to another characterisation. I do not consider that anything more was required in the circumstances: the reasons well exceed the minimum acceptable level. 4. Further, once the structure of the sentencing judge's reasons are properly understood, it is apparent, in my view, that there is no substance to the suggestion that the sentencing judge "overlooked" any material matter, nor does it correctly characterise that which occurred – her Honour did not overlook any matter, but found the facts in a way that entailed rejection of the contrary version advocated on behalf of the applicant. In any event, contrary to what was submitted, it is, and has long been recognised as, "plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected": Mifsud v Campbell (1991) 21 NSWLR 725, 728; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at [62]. 5. For those reasons, I would dismiss this ground of appeal. Ground 1: the failure to provide reasons for failing to find that the applicant's mental health contributed to the offending Introduction 1. By this ground of appeal, the applicant argues that the sentencing judge erred "in failing to provide reasons for declining to find that the applicant's mental health contributed in any way to the offending" and, as part of that, failing to provide reasons for why she did not accept and act upon expert evidence that was broadly to that effect (applicant's submissions at [17] and [25]). 2. The sentencing judge did not accept there was a contribution between the applicant's mental health and the offending: her Honour was "not prepared to make any finding that the state of the mental health of the [applicant] in any way contributed to his offending" (J11). 3. In my view, as I explain in what follows, the sentencing judge provided sufficient reasons for this finding, and it is sufficiently clear why she did not act on the expert evidence. Discussion and consideration 1. A consideration of this ground of appeal must start with an understanding of how the "mental health" issue was argued below – what was sought to be established before the sentencing judge, and the factual findings that the applicant invited the sentencing judge to make. 2. As noted above, the applicant relied upon a report from Ms Kris North, forensic psychologist. Relevantly here, the submissions advanced by the applicant before the sentencing judge, both written and oral, were directed to the opinion expressed in paragraph 11 of her report. In short, the opinion there expressed was that the applicant's "underlying mental health issues relating to generalised anxiety and depression had contributed to his loss of control at the time of the incident, with [the applicant] describing having lost control of his emotions and behaviour subsequent to the victim's denial of past behaviours"; that the applicant was "overwhelmed at the time" and "was constantly in a hyper aroused state leading up to the incident which had been further exacerbated by the victim's behaviour and directly triggered at the time of the incident"; and, finally, that the applicant's "alcohol use had also contributed". 3. The victim's "behaviour" was referred to, and set out, in earlier parts of the report, and consisted of what the applicant described as "a pattern of behaviour over several months by the victim which [the applicant] had considered to have been rude, offensive and disrespectful towards him"; and that, on the day in question, the applicant "described the victim as having provoked him…". 4. The sentencing judge rejected the opinion that the applicant's alcohol consumption contributed to the offending, finding that "there is no evidence of intoxication and…that the [applicant] acted with precision not consistent with intoxication" (J10). That finding has not been challenged, and need not be considered further. 5. The materiality of "loss of control" to the applicant's sentencing case requires some further explanation. The applicant sought to argue, and persuade the sentencing judge to find, that he had been provoked by the victim which contributed to his loss of control. The applicant, in both written and oral submissions, argued that in order to find provocation, there were "three primary considerations" – namely, "the nature of the provocation, whether the [applicant] lost control or acted impulsively [and] the nature of the [applicant's] criminal conduct" (Tcpt, 6 March 2024, p 11(35)-(37); applicant's sentencing submissions at [13]). The applicant submitted to the sentencing judge that she was "entitled to find that the factual version that was given by the [applicant] to Ms North upon which she based her opinion was an accurate version as to the background of this offending" (Tcpt, 6 March 2024, p 11(39)-(42)) and, later, that if the sentencing judge "were to find the relevant facts on balance then that would be an unchallenged opinion as to the loss of control" (Tcpt, 6 March 2024, p 12(19)-(20)). Put simply, the issues of provocation and loss of control were argued to be interrelated and each of them rested upon the version given by the applicant to Ms North and upon which her opinion was based. 6. The applicant's sentencing case was, thus, that the contribution by the mental health conditions was explicable on the footing that he was susceptible to provocation and losing control, or that those conditions more generally contributed to him being provoked and losing control. That case is reflected in the submissions made to the sentencing judge that she should "take into account the persistent nature of the provocative acts in the context of the [applicant's] generalised anxiety disorder which ultimately resulted in his loss of control" (Tcpt, 6 March 2024, p 12(13)-(15)) and the further submission that the applicant's "aggression was reactive in nature and driven by his heightened emotions" because, consistent with what Ms North had said, the applicant was in a "hyper aroused state leading up to the incident which had been further exacerbated by the victim's behaviour and directly triggered at the time of the incident" (Tcpt, 6 March 2024, p 12(41)-(45)). It should be emphasised that there was not any distinct case advanced on the basis of the applicant's mental health issues alone accounting for his conduct. 7. The opinion expressed by Ms North about the contribution by the mental health conditions, earlier referred to, assumed various matters favourable to the applicant's case on this issue – including those earlier set out (see [83]-[84], above) and also assumed that there had been negative interactions with the victim "for up to seven (7) months preceding the offence in October 2022" (report of Ms North, par 9). It should be noted, however, that Ms North was not briefed with the agreed facts, nor was she provided with the CCTV footage of the incident: Ms North's opinion was, therefore, based solely upon the conduct she was asked to assume, and as set out in the earlier parts of her report referred to. 8. Thus, to sum up: the applicant's sentencing case essentially was that he was subjected to a course of conduct by the victim in the way described in [84] and [88], and that the combination of the provocative conduct of the victim and his loss of control against the background of his "mental health issues" should result in a finding of provocation thereby mitigating the objective seriousness of the offending and any sentence imposed upon him. 9. It is important to emphasise, as noted above, that the applicant conceded before the sentencing judge that for his sentencing case on this issue to be accepted, it was necessary for her Honour to find the facts in accordance with what the applicant told Ms North, and upon which her opinions were based. That, however, did not occur: the sentencing judge did not accept that there was provocative conduct by the victim in the way that the applicant alleged. Having made these findings (which had been set out in the context of dealing with appeal ground 2, and elsewhere), the sentencing judge thereafter held that she was "not prepared to make any finding that the state of the mental health of the [applicant] in any way contributed to his offending" (J11). 10. I consider the sentencing judge's reasons to be sufficient, and no further reasons, in the circumstances of this case, were required with respect to this issue. The circumstances of the case include how the matter was presented and argued by the applicant, as earlier explained. The function of reasons is to "explain the decision, not to write an exhaustive treatise on every aspect of the trial": Prouten v Chapman [2021] NSWCA 207 at [32]; Soulemezis at 273. This the sentencing judge did. It is readily apparent from her Honour's reasons why the issue was resolved in this way: the sentencing judge did not accept the factual matters assumed by the expert but found the facts to be to the contrary. Aside from the bare contention that the reasons were insufficient and suggesting that there was some difficulty in understanding the basis for the decision (a suggestion that I do not accept), the applicant did not identify what more would be required in order to fulfil the minimum acceptable level of reasons, nor why. In my view, it is difficult to see what more would be required – and why – to resolve that contested issue of fact, particularly given the manner in which it was presented for resolution to the sentencing judge. 11. The applicant's next, and related, argument was that the reasons of the sentencing judge did not explain why the expert evidence that suggested a contribution to the offending was rejected. As was put in submissions in this Court, the reasons of the sentencing judge "made it very difficult to understand the basis upon which [the opinion from Ms North] was rejected" (Tcpt, 4 November 2024, p 4(47)-(48)). 12. I do not accept this submission. In my view, it is readily apparent why the expert evidence was not accepted – the sentencing judge did not accept the factual matters assumed by the expert but found the facts to be to the contrary. The findings included: that the "assault was unprovoked and particularly vicious"; that the assault was, contrary to what was submitted by the applicant, "not short lived, [but] was an ongoing course of conduct"; that the assault was "unprovoked, vicious and sustained" and involving "a most deliberate act on the part of the [applicant]" (J9-10). 13. Once those findings of fact were made, then given they were not "sufficiently like" those facts assumed by Ms North, her opinion, suggesting there was a contribution to the offending in the way earlier explained, was devoid "of any value": Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844, 846. The requirement for the correlation between the facts proved and those assumed is "that the expert's conclusion must have some rational relationship with the facts proved" and the failure to prove them justifies rejection of the expert evidence: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [64]-[66]. Here, that correlation is absent upon the findings made. Given the sentencing judge rejected the factual premise upon which the opinions from Ms North were based then, contrary to what the applicant submitted, it is not "difficult to understand the basis" for why Ms North's opinion was not accepted. 14. The position is not otherwise because, as the applicant submitted, the expert was not cross-examined. An expert opinion devoid of value does not somehow transform into an opinion of value by the absence of cross-examination. Nor is it correct to say that the expert evidence was "not challenged". The Crown, at no point, accepted that the applicant was provoked and advanced a number of submissions why the opinion should not be acted upon by the Court, including the fact that it rested upon an untested version given by the applicant to the expert. 15. There is a final matter. During the course of submissions in this Court directed to this ground, aspects of the applicant's argument tended to drift into a generalised complaint about the sentencing judge not accepting – and acting upon – the version given to Ms North by the applicant, and upon which her opinion was based. (Broadly similar submissions were made in connection with ground 2, where this argument is dealt with). As to that generalised complaint, it suffices to simply note that the ground of appeal is directed to the sufficiency of reasons, and not with any finding of fact made or any failure to find certain facts. In any event, the argument in support of this ground is not, in my view, enhanced merely by pointing out that there was other evidence that might have been accepted, but was not. Separately, the course of the sentence hearing (again) warrants emphasis: as earlier noted, the applicant elected not to give evidence and so the sentencing judge was faced with resolving the factual issues in connection with "provocation" (in the way argued) based upon the agreed facts (which included the CCTV footage of the assault and its aftermath) and the applicant's untested versions of the alleged provocative conduct and the incident itself. Given those circumstances, that the sentencing judge found the facts in the way that she did was, in my view, not in any way surprising and plainly open to her. 16. For those reasons, I would dismiss this ground of appeal. Ground 3: the alleged factual errors Introduction 1. By this ground of appeal, the applicant argued that the sentencing judge made three "material factual errors". Those errors were identified in the applicant's written submissions as involving the sentencing judge falling into error in finding, first, that the applicant "called out to the victim to stop"; secondly, in finding that the offending only stopped when members of the public intervened and distracted the applicant; and, thirdly, that the victim suffers ongoing psychological injuries as a result of the injuries inflicted upon him by the applicant (applicant's submissions at [45]). 2. At the hearing, however, the applicant abandoned the challenge directed to the first and third findings, pressing only a challenge to the second finding (Tcpt, 4 November 2024, p 10(31)-(39)). That finding was expressed by the sentencing judge as follows (J9): This assault took place in [a] public place witnessed by members of the public who waited [with] the victim for emergency services to arrive, unlike the [applicant]. The attack upon the victim only ceased when others intervened and distracted the [applicant] from continuing to further threaten or assault the victim. 1. The Crown accepted that the test to be applied to a challenge to a factual finding is whether the challenged finding was open on the material before the Court: see [67], above. The applicant, it should be noted, did not submit to the contrary. Discussion and consideration 1. The applicant submitted that the sentencing judge erred in making the second challenged finding – namely, that the offending only stopped when members of the public intervened and distracted the applicant. The applicant argued that the evidence did not support a finding that members of the public needed to intervene, or to distract the applicant, in order to "discontinue the attack" (applicant's submissions at [54]). 2. It is important to read the reasons of the sentencing judge not narrowly, but fairly, in context and as a whole – or, as is sometimes said, to avoid "compartmentalising the reasoning process": Small v K & R Fabrications (W'gong) Pty Ltd [2016] NSWCA 70 at [54]. When that is done, it is apparent that there is no error of the kind alleged, or indeed any error at all. 3. In my view, the reference to the "attack" is not, as the applicant argued, a singular reference to when the applicant "swung the bat towards the victim striking him to the left side of the face" (J18), but a reference to the course of events that extended beyond that time. So much is clear, I consider, from the structure of the sentence remarks where the finding appears, and the manner of its expression. In short, the sentencing judge was simply, and accurately, describing that it was only following the attendance of the "unknown male and female who lived in the house near to where the incident occurred" (J5) that the situation was de-escalated. A wider examination of the reasons confirms this. As the sentencing judge had earlier found (findings that the applicant did not challenge), the "unknown female called the police and then attempted to calm the [applicant] down" (J5) and, further, the applicant "continued to walk around the victim whilst he was sitting on the ground and repeatedly waved his hands and pointed at the victim in a threatening manner" (J5). 4. The challenged finding was well open to the sentencing judge based, as it was, firmly upon the agreed facts (agreed facts at [31]-[32]) and the CCTV footage depicting not only the applicant striking the victim, but his conduct after that time which extended to him behaving in the way described by her Honour. 5. For those reasons, I would dismiss this ground of appeal. Orders 1. For the above reasons, I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal. 1. SWEENEY J: I agree with Chen J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2024