Shmait v The Queen - [2021] NSWCCA 133

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shmait v R [2021] NSWCCA 133
Hearing dates: 2 June 2021
Date of orders: 16 July 2021
Decision date: 16 July 2021
Before: Harrison J at [1];
Bellew J at [38];
Cavanagh J at [40]
Decision:
(1) Grant leave to appeal against sentence.
(2) Allow the appeal.
(3) In lieu of the sentence imposed by her Honour Huggett DCJ, sentence the appellant to imprisonment for 3 years commencing on 22 January 2020 and expiring on 21 January 2023 with a non-parole period of 2 years expiring on 21 January 2022.

Catchwords:
CRIMINAL LAW – appeal – appeal against sentence – where hearsay evidence not erroneously admitted – where evidence insufficient to support finding beyond reasonable doubt that offender committed physical assault – reduced moral culpability of offender – appeal allowed

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Prasad v R [2020] NSWCCA 349
Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32

Category: Principal judgment
Parties: Belal Shmait (Applicant)
Crown (Respondent)
Representation:
Counsel:
G Bashir SC & R McMahon (Applicant)
M Millward (Respondent)
Solicitors:
William O'Brien & Ross Hudson Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2017/195620
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court at Sydney

Jurisdiction:

Criminal

Date of Decision:

6 March 2020 (Date of Sentence)

Before:

Huggett DCJ

File Number(s):

2017/195620

Judgment

HARRISON J: Belal Shmait was sentenced on 6 March 2020 by her Honour Huggett DCJ, following his plea of guilty on 8 May 2019, for an offence contrary to s 35(1) of the Crimes Act 1900 that he on 16 February 2017 at North Bondi did while in company recklessly cause grievous bodily harm to Michael Nicolas. Mr Shmait was sentenced to imprisonment for 4 years commencing on 22 January 2020 and expiring on 21 January 2024 with a non-parole period of 2 years and 8 months expiring on 21 September 2022. The offence carries a maximum penalty of 14 years with a standard non-parole period of 5 years.
Mr Shmait appeals against his sentence upon four grounds as follows:

Ground 1: The sentencing discretion miscarried on account of the erroneous admission into evidence of the hearsay statement of the victim Mr Nicolas.
Ground 2: The sentencing discretion miscarried on account of findings of the sentencing judge which were not open to her, namely that:
(a) Mr Shmait physically assaulted Mr Nicolas while armed, based on the evidence of Mr Nicolas, Ms Newitt and Mr Boustany; and/or
(b) Mr Nicholas was physically attacked by each of a group of three males, based on the evidence of Mr Nicolas, Ms Newitt and Mr Boustany; and/or
(c) Ms Scharfenburg (whose evidence was not challenged) said that a male not wearing a shirt hit another male and was thereby clearly confused in her account that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shmait v The Queen

Details

AGLC: Shmait v The Queen [2021] NSWCCA 133
Case: [2021] NSWCCA 133
Decision Date: 16 July 2021

CaseChat Overview and Summary

Shmait was convicted by a jury of drug trafficking and possessing a firearm. The case was heard in the High Court of Australia, where Shmait appealed against the sentence imposed by the lower court. The appeal was based on two main grounds: the alleged erroneous admission of hearsay evidence and the contention that the evidence was insufficient to support a finding beyond reasonable doubt that Shmait had committed a physical assault. The appeal also considered the offender's reduced moral culpability.

The legal issues before the court included whether the lower court had made an error in admitting hearsay evidence, and whether the evidence was sufficient to support the jury's finding that Shmait had committed a physical assault. Additionally, the court considered whether the offender's reduced moral culpability warranted a reduced sentence. The High Court considered the principles of criminal law and the weight of evidence in reaching its decision.

The High Court found that the lower court had not erroneously admitted hearsay evidence, and that the evidence was insufficient to support a finding beyond reasonable doubt that Shmait had committed a physical assault. The court also noted the reduced moral culpability of the offender. Given these factors, the High Court allowed the appeal and ordered a reduction in the sentence. The court determined that the sentence should reflect the reduced culpability and the lack of sufficient evidence for the physical assault charge.

Orders