CATCHWORDS:
CRIMINAL LAW - appeal against conviction - maliciously inflict grievous bodily harm with intent to do grievous bodily harm - whether verdict unreasonable or cannot be supported by the evidence - whether a significant possibility that the incorrect person has been convicted - whether trial miscarried on account of crown prosecutor's address - whether trial judge erred by failing to give adequate directions in respect of acts or omissions of the appellant giving rise to a consciousness of guilt - appeal dismissed
CRIMINAL LAW - appeal against sentence - whether trial judge erred in consideration of subjective features of offender as going to special circumstances only - subjective features to be considered in assessing application of standard non parole period - whether insufficient variation from standard non parole period - appeal dismissed

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
Allen v R [2008] NSWCCA 11
Causevic v R [2008] NSWCCA 238
Dodds v R (2009) NSWCCA 78
Livermore v R [2006] NSWCCA 334 at [31]; 67 NSWLR 659
R v Chisari [2006] NSWCCA 19
R v Fidow [2004] NSWCCA 172
R v McGourty [2002] NSWCCA 335
R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94
R v Way (2004) 60 NSWLR 168
Tidona v R [2005] NSWCCA 410

TEXTS CITED:

DECISION:
1. Appeal against conviction dismissed.
2. Grant leave to appeal against sentence but dismiss the appeal.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3203
McCLELLAN CJ at CL
HOWIE J
HISLOP J
WEDNESDAY 29 APRIL 2009

GERSBACH, Mathew v R

Judgment

McCLELLAN CJ at CL: The appellant was convicted of maliciously inflicting grievous bodily harm on Shane Rumble (“the victim”) with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900.
The maximum penalty for the offence is 25 years imprisonment. The offence attracts a standard non-parole period of 7 years – s 54A Crimes (Sentencing Procedure) Act. The appellant was sentenced to imprisonment for 9 years and 4 months with a non-parole period of 6 years and 6 months. The appellant appeals against his conviction and seeks leave to appeal against his sentence.
There are three grounds of appeal against the conviction. The first ground is that the verdict is unreasonable. The two further grounds are related to the Crown Prosecutor’s address and the failure of the trial judge to give adequate directions in relation to lies.
Factual matters

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 Gersbach v The Queen

Details

AGLC: Gersbach v The Queen [2009] NSWCCA 132
Case: [2009] NSWCCA 132
Decision Date: 29 April 2009

CaseChat Overview and Summary

The case of Gersbach v The Queen involved an appeal against both conviction and sentence. The appellant was convicted of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. The appeal contested the conviction on the grounds that the verdict was unreasonable or not supported by the evidence, and that there was a significant possibility that the incorrect person had been convicted. Additionally, the appeal argued that the trial miscarried due to the crown prosecutor's address and that the trial judge erred by not giving adequate directions regarding the appellant's acts or omissions that may have demonstrated a consciousness of guilt.

The court examined the evidence presented at trial and considered whether it was sufficient to support the appellant's conviction. It also assessed whether there was a significant risk that the wrong person had been convicted. Furthermore, the court evaluated whether the trial had miscarried due to the prosecutor's address and if the trial judge's failure to provide adequate directions about the appellant's potential consciousness of guilt constituted an error. The court determined that the evidence was sufficient to support the conviction and that the trial had not miscarried. It also found no error in the trial judge's directions.

In dismissing the appeal against conviction, the court found that the evidence was robust and the conviction was reasonable. The appeal against sentence was also dismissed, as the court held that the trial judge had appropriately considered the subjective features of the offender in determining the standard non-parole period, and that any variation from the standard was justified. The court concluded that the appeal lacked merit and was therefore dismissed.

Orders