Shmait v R [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