Shmait v R

1. [1]

   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.

2. [2]

   Mr Shmait appeals against his sentence upon four grounds as follows:

3. [3]

   The burden of Mr Shmait’s submissions concerning the length of his sentence is that it was erroneously influenced by her Honour’s finding or conclusion that Mr Shmait physically struck Mr Nicolas when there is on Mr Shmait’s account no acceptable evidence that he did so. Although Mr Shmait pleaded guilty to the offence, he submits that his sentence should have reflected the fact that he did not personally do any act that directly caused grievous bodily harm to Mr Nicolas.

4. [4]

   Her Honour made findings that Mr Shmait physically assaulted Mr Nicolas, that three males were involved in the assault and that each attacked him. Her Honour was satisfied that Mr Shmait physically assaulted Mr Nicholas at least once for the following reasons:

   1. (1)

      Mr Nicolas’ account “accords with other evidence, significantly that three males were involved and each was assaulting him”. Her Honour accepted Mr Nicholas’ account and was “satisfied that it is sufficiently reliable to act upon”. This finding is challenged.

   2. (2)

      Her Honour “accepted that Ms Newitt was wrong regarding the number of assailants and recalling that they all had weapons”. Her Honour said that “given the frightening nature of what she observed and the fact that things were happening relatively quickly, errors of this sort are to be expected and do not affect the reliability of central parts of her recollection – namely that Mr Nicolas was attacked by a group of males, all of whom physically assaulted him and weapons were involved”. These findings are challenged.

   3. (3)

      Her Honour did not accept the evidence given by Mr Boustany “as honest and accurate” and her Honour “put it aside” in her fact finding task. However, her Honour was “satisfied however that his statement regarding seeing at least three males assault the victim is reliable”. He Honour concluded that it was “consistent with what other witnesses in close proximity to the events in question describe occurred, namely Mr Nicolas and Ms Newitt, consistent with that part of the incident captured in a [video] recording and it was made very soon after the events in question in circumstances which I am satisfied were reliable”. This finding is challenged.

   4. (4)

      Her Honour also found that “Mr Nicolas, Ms Newitt and Mr Boustany each recorded in accounts given soon after the events in question that each male who was involved in the attack physically assaulted the victim in some way and there is nothing in the video recording or stills taken from the recording that causes me to have any doubt in that regard”. Her Honour was “satisfied that the offender did in fact physically assault the victim” although her Honour was unable to say precisely how, but “when he did that he was armed or had on him the pole”. These findings are challenged.

Ground 1

1. [5]

   Section 65(2)(b) of the Evidence Act 1995 provides as follows:

2. [6]

   Mr Nicolas provided what is referred to as a statement to the police about what had happened to him. It was in fact the transcript of his interview with police conducted at 3pm on 16 February 2017, or about two hours after he was assaulted. Mr Shmait objected to the tender in the sentencing proceedings. Mr Nicolas was not available to be cross-examined. Mr Shmait now contends that her Honour erred in two respects in receiving this statement.

3. [7]

   First, her Honour is said erroneously to have adopted a compendious approach to the question of the admissibility of the representations contained in the statement, contrary to the High Court decision in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32. Secondly, it was not open to her Honour to find that the representations were made in circumstances that made them unlikely to be a fabrication or that they were made in circumstances that make it highly probable that the representations are reliable, so that the preconditions for admissibility in s 65(2)(b) or (c) were not met.

4. [8]

   The Evidence Act only applies to sentence proceedings if the Court so directs: s 4(2)(a). Neither party made an application that it should apply. However, in the course of the argument about the admissibility of the statement, counsel for the Crown referred to the section. Counsel for Mr Shmait did not do so, contending before her Honour only that the statement should not be admitted because Mr Nicolas was not available for cross-examination and that if it were admitted, his absence was relevant to the weight that it should be given.

5. [9]

   Her Honour proceeded in any event upon the basis that the section was relevant. While observing that there was no issue that Mr Nicolas was unavailable despite efforts to locate him, her Honour said this:

6. [10]

   It is accepted by the Crown that it is open to this Court to proceed upon the basis at s 4(2) of the Evidence Act was properly engaged before her Honour and that the appropriate direction was made.

7. [11]

   Mr Shmait contended that, upon the basis of what was said in Sio, her Honour’s approach to the representations was flawed. In that case, the High Court said this at [57]-[58]:

8. [12]

   Sio has been recently considered in this Court in Prasad v R [2020] NSWCCA 349 at [85]-[87], [89] as follows:

9. [13]

   As the Crown submissions have uncontroversially identified, the one presently relevant fact sought to be proved by the tender of Mr Nicolas’ statement is whether all of the offenders including Mr Shmait had physically assaulted him. In this respect, Mr Nicolas’ statement included the following:

10. [14]

    In the proceedings on sentence on 20 December 2019, on the application to tender the statement, her Honour said this:

11. [15]

    In the present case, the limited representations were to a similar effect, namely, how Mr Nicolas came to be injured. It is implicit that the representation of importance was the reference by Mr Nicolas to “three blokes …smacking me with things”. It seems to me to be readily apparent that the manner in which her Honour approached the application to admit his statement did not divert attention from the issue of whether Mr Shmait was a physical contributor to the blows inflicted upon Mr Nicolas. Indeed, that representation was the only one of relevance to the Crown case on the question of the identification of who physically assaulted him.

12. [16]

    The interview with Mr Nicolas was short, having regard to the circumstances in which it occurred. However, it took place within two hours of the assault so that its near contemporaneity meant that the risk of an honestly mistaken recollection of events was slight. In particular, Mr Nicolas was not an accomplice and there was nothing to suggest that his responses were fabricated.

13. [17]

    In my view, her Honour did not erroneously admit Mr Nicolas’ statement.

Ground 2

1. [18]

   The events that give rise to the charges were relatively brief and undoubtedly somewhat frenetic. Mr Shmait takes comfort in this appeal from the fact that her Honour was faced with less than perfect information and evidence arising out of this incident upon which to determine whether or not he physically assaulted Mr Nicolas. His ultimate submission is that her Honour could not in these circumstances have been satisfied beyond reasonable doubt that he did so. The Crown response is that all of the evidence taken as a whole, and not in a piecemeal fashion, is sufficient to support her Honour’s finding.

2. [19]

   In her remarks on sentence, her Honour said this:

3. [20]

   The Crown submitted that, properly understood, that was an available finding beyond reasonable doubt, that each of the males who was involved in the attack physically assaulted Mr Nicolas. Mr Shmait was accepted to be one of the males involved in the attack. The Crown submitted that it therefore necessarily followed from her Honour’s finding that Mr Shmait physically assaulted him.

4. [21]

   Apart from Mr Nicolas, and a video taken on a phone, the evidence consisted of versions of what occurred given by five witnesses.

5. [22]

   Zoe Newitt participated in a recorded interview with the police at St Vincent’s Hospital on the afternoon of the events in question. The interview was tendered without objection. She said that she was sitting with Mr Nicolas in the North Bondi reserve chatting with friends when some guys came up behind her and “started whacking”. She said that “they all kind of got on Mick and started hitting him repeatedly in the head around the body”. She denied that there was one main aggressor.

6. [23]

   Her Honour said that Ms Newitt was in a very good position to see what was happening because she was close and was concentrating on Mr Nicolas. Even though she made a mistake about the number of men who attacked him and that they all had weapons, such errors were to be expected and “do not affect the reliability of the central parts of her recollection – namely, that Mr Nicolas was attacked by a group of males, all of whom physically assaulted him and weapons were involved”.

7. [24]

   Charbel Boustany gave a statement to the police hours after the incident and also gave evidence in the sentence proceedings on 27 February 2020. His statement contained the following:

8. [25]

   Her Honour considered that this evidence was effectively contemporaneous and reliable and accorded with the evidence of other witnesses. However, her Honour was singularly unimpressed with the evidence given by Mr Boustany in the sentencing proceedings. Mr Shmait submitted in this Court that her Honour’s unfavourable view of Mr Boustany as a witness undermined her Honour’s acceptance of the matters to which he referred when interviewed by the police: her Honour described Mr Boustany as a “most unimpressive and disingenuous witness” who was “argumentative…unresponsive and evasive”.

9. [26]

   With respect to Mr Boustany’s evidence touching his recollection of who struck Mr Nicolas, her Honour said this:

10. [27]

    Sarah Sharfenberg provided a statement to the police on 23 February 2017. Her Honour concluded that she “clearly” did not see the whole incident, contrary to Mr Shmait’s submissions. He submitted that her Honour’s description of Ms Sharfenberg as “confused” should be rejected. He submitted that Ms Sharfenberg in fact saw at least the majority of the incident and in particular that it was only one man, not being Mr Shmait, who struck Mr Nicolas.

11. [28]

    Jamie Wright and Liam Kelly do not appear to have seen the whole of the incident. Their evidence was effectively silent upon the question of how many assailants physically struck Mr Nicolas.

12. [29]

    In these circumstances, Mr Shmait submitted that, even taking the evidence of Mr Nicolas, Ms Newitt and Mr Boustany at its highest, it was not open to her Honour to find beyond reasonable doubt that he physically attacked Mr Nicolas or that he was armed with a pole when he did so. The video did not show that Ms Shmait physically attacked Mr Nicolas and the evidence of the other witnesses did not assist in this respect. This should have caused her Honour to have a reasonable doubt. Mr Shmait submitted that the video and the evidence of Ms Sharfenberg provided a foundation for her Honour to find that on balance there was only one offender who physically assaulted and harmed Mr Nicolas.

13. [30]

    In my opinion, the evidence was not sufficient to support a finding to the criminal standard that Mr Shmait physically assaulted Mr Nicolas. The evidence clearly establishes that he was one of a group of males armed with weapons and that Mr Nicolas was undoubtedly assaulted by one of them, including or perhaps even limited to the offender wearing the white shirt as shown in the video. The statement given by Mr Nicolas does not in my view describe what occurred with a level of detail or specificity that would support the relevant conclusion beyond reasonable doubt. The video is silent on the issue. Ms Newitt’s most detailed description, that they “all kind of got on Mick”, seems to me to be sufficiently qualified to raise a reasonable doubt when the allegedly supporting evidence is no more emphatic. It is not difficult to appreciate why there was a disputed facts hearing having regard to the frailty of the evidence directly inculpating Mr Shmait in the physical attack on Mr Nicolas.

14. [31]

    I would allow this ground of appeal. That conclusion is sufficient to require Mr Shmait to be resentenced by this Court: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Grounds 3 and 4

1. [32]

   Having regard to my conclusions with respect to Ground 2, it is unnecessary to consider these grounds.

Resentence

1. [33]

   Mr Shmait does not challenge her Honour’s findings, apart from those that are based on or which are derived from her impugned conclusion about his role in the offence. Her Honour’s finding that Mr Shmait physically assaulted Mr Nicolas is generally relevant to his role and directly relevant to the objective seriousness of the offence and his moral culpability. It is instructive to record her Honour’s description of the objective gravity of offence:

2. [34]

   With the exception of the italicised sentence, I propose to adopt the balance of her Honour’s findings, including those relating to special circumstances, Mr Shmait’s remorse, his subjective circumstances and the discount for his plea. In terms of objective seriousness, I consider that the offence falls below the middle of the range of objective seriousness.

3. [35]

   Her Honour dealt with Mr Shmait’s moral culpability in these terms:

4. [36]

   After making allowance for her Honour’s impugned finding, her description of the matters informing Mr Shmait’s moral culpability are unexceptionable and I would embrace them. However, having regard to the fact that Mr Shmait cannot be shown beyond reasonable doubt to have physically assaulted Mr Nicolas, his moral culpability is correspondingly reduced.

5. [37]

   I propose the following orders:

   1. (1)

      Grant leave to appeal against sentence.

   2. (2)

      Allow the appeal.

   3. (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.

6. [38]

   BELLEW J: I have had the advantage of reading in draft the judgment of Harrison J.

7. [39]

   Having reviewed the evidence, I am not satisfied that it was open to the sentencing judge to find, beyond reasonable doubt, that the appellant assaulted Mr Nicolas. I agree with the orders proposed by Harrison J.

8. [40]

   CAVANAGH J: I agree with Harrison J. Whilst it might be somewhat unusual for this Court to interfere with a finding of fact on sentence, findings adverse to the offender must be made to the criminal standard, that is, beyond reasonable doubt.

9. [41]

   On my analysis of the evidence, including the witness statements and the video, there is sufficient doubt as to whether the applicant physically attacked the victim that the finding the subject of Ground 2 was not open.