Shmait v R [2021] NSWCCA 133

Shmait v R [2021] NSWCCA 133

The victim's statement was not erroneously admitted, but the evidence was insufficient to support a finding beyond reasonable doubt that the applicant physically assaulted Mr Nicolas. That erroneous factual finding affected the assessment of the applicant's role, objective seriousness and moral culpability, requiring the appeal to be allowed and the applicant to be resentenced to a shorter term of imprisonment.

Jurisdiction
Australia
Judgment Date
16 July 2021
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence and Appeal in the Court of Criminal Appeal
Outcome
Leave to appeal against sentence granted; appeal allowed; applicant resentenced.
Legal Topics
['appeal Against Sentence' 'hearsay Evidence' 'evidence Act 1995 (nsw) S 65' 'findings of Fact on Sentence' 'criminal Standard of Proof' 'recklessly Causing Grievous Bodily Harm in Company' 'objective Seriousness' 'moral Culpability']
['criminal Law' 'evidence' 'sentencing'] ['appeal Against Sentence' 'hearsay Evidence' 'evidence Act 1995 (nsw) S 65' 'findings of Fact on Sentence' 'criminal Standard of Proof' 'recklessly Causing Grievous Bodily Harm in Company' 'objective Seriousness' 'moral Culpability']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence and Appeal in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing discretion miscarried because the victim's hearsay statement was erroneously admitted into evidence." 'Whether it was open to the sentencing judge to find beyond reasonable doubt that the applicant physically assaulted the victim while armed or that each of three males physically attacked the victim.' "Whether the sentencing judge should have found that the co-offender in the white shirt caused the victim's injuries." 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The victim's statement was not erroneously admitted, but the evidence was insufficient to support a finding beyond reasonable doubt that the applicant physically assaulted Mr Nicolas. That erroneous factual finding affected the assessment of the applicant's role, objective seriousness and moral culpability, requiring the appeal to be allowed and the applicant to be resentenced to a shorter term of imprisonment.

Court Disposition

Leave to appeal against sentence granted; appeal allowed; applicant resentenced.

Orders

  • ['Grant leave to appeal against sentence.' 'Allow the appeal.' '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.']