Gersbach v R [2009] NSWCCA 132

New South Wales Court of Criminal Appeal

CITATION: Gersbach v R [2009] NSWCCA 132

HEARING DATE(S): 9 December 2007

JUDGMENT DATE: 29 April 2009

JUDGMENT OF: McClellan CJatCL at 1; Howie J; Hislop J

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

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

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

CATEGORY: Principal judgment

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 CASES CITED : 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