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Court of Criminal Appeal 16 July 2021

Shmait v R

[2021] NSWCCA 133

Assault & violence
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE REDUCED MORAL CULPABILITY OF OFFENDER APPEAL ALLOWED

Citation: Shmait v R [2021] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 16 July 2021
Judges: Harrison J (principal judgment); Bellew J; Cavanagh J (both agreeing)

Background

The appellant pleaded guilty to recklessly causing grievous bodily harm while in company, contrary to s 35(1) of the Crimes Act 1900 (NSW). The offence arose from an incident at North Bondi on 16 February 2017, in which a group of males attacked the victim using weapons. The appellant was sentenced to four years' imprisonment with a non-parole period of two years and eight months.

The sentencing judge found, as an adverse factual finding, that the appellant had personally and physically assaulted the victim at least once during the attack, and that he had done so while armed. The appellant challenged that finding on appeal, arguing the evidence did not support it to the required standard.

The appeal also raised questions about the admissibility of hearsay evidence and whether the overall sentence was manifestly excessive.

  • Whether the hearsay statement of the victim (admitted under s 65 of the Evidence Act 1995) was erroneously received into evidence, including whether the sentencing judge applied an impermissible compendious approach inconsistent with Sio v The Queen
  • Whether the sentencing judge's finding that the appellant physically assaulted the victim was open on the evidence, applying the criminal standard of proof (beyond reasonable doubt)
  • Whether findings that each of three males physically attacked the victim were supported by the evidence
  • Whether the sentence was manifestly excessive in light of any errors in the factual findings

Decision

Ground 1 (hearsay): The Court noted that the Evidence Act 1995 applies to sentence proceedings only if the court so directs under s 4(2). Here, the direction was treated as having been made. Harrison J found that, while the better approach required individual assessment of each representation as required by Sio v The Queen, the ground ultimately did not succeed as a standalone basis for allowing the appeal. The hearsay issue was addressed as part of the broader analysis of whether the underlying factual findings were open.

Ground 2 (physical assault finding not open): This ground succeeded. All three judges were satisfied that the evidence did not establish beyond reasonable doubt that the appellant personally struck the victim. The sentencing judge had drawn on the accounts of the victim, a bystander witness, and a statement from a co-offender, but the Court found that the evidence, including a video recording, left sufficient doubt. Adverse factual findings at sentencing must be established to the criminal standard, and that standard was not met here.

Moral culpability and resentencing: The Court accepted that the sentencing judge's broader description of the appellant's conduct remained largely sound. The appellant had brandished a weapon, participated in a joint plan, and played a significant role beyond that of a passive bystander. However, the removal of the finding of direct physical assault reduced his moral culpability, warranting a reduced sentence. The Court substituted a sentence of three years' imprisonment with a non-parole period of two years.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • In substitution for the original sentence: imprisonment for three years commencing 22 January 2020 and expiring 21 January 2023, with a non-parole period of two years expiring 21 January 2022

Key Takeaways

  • Adverse factual findings made against an offender at sentencing must be established to the criminal standard, that is, beyond reasonable doubt. The Court of Criminal Appeal confirmed this principle is not merely technical but directly affects the assessment of moral culpability and, consequently, the sentence imposed.
  • Where witness evidence is inconsistent and a video recording leaves genuine doubt about a defendant's direct physical participation, a finding of personal assault is not open to the sentencing court.
  • Under s 65 of the Evidence Act 1995, admissibility of hearsay representations requires individual assessment of each representation in context, consistent with the High Court's guidance in Sio v The Queen (2016) 259 CLR 47. A compendious approach that treats a statement as a whole without examining each representation may be flawed.
  • Participating in a joint criminal enterprise while armed, brandishing a weapon, and actively deterring intervention can still attract high moral culpability even where direct physical assault on the victim is not proven beyond reasonable doubt.
  • A material error in an adverse factual finding at sentencing can warrant appellate intervention and resentencing, even where the offender's guilty plea and overall role in the offence are not in dispute.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(1)
- Evidence Act 1995 (NSW), ss 4(2), 65(2)(b), 65(2)(c)

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