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Court of Criminal Appeal 29 April 2009

Gersbach v R

[2009] NSWCCA 132

Assault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION APPEAL DISMISSED CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL DISMISSED

Citation: Gersbach v R [2009] NSWCCA 132
Court: NSW Court of Criminal Appeal
Date: 29 April 2009
Judge(s): McClellan CJ at CL, Howie J, Hislop J

Background

The appellant was convicted in the District Court of maliciously inflicting grievous bodily harm with intent, contrary to section 33 of the Crimes Act 1900, after an unprovoked attack on a man walking the streets of Edgeworth in the early hours of 1 February 2006. The victim suffered serious head injuries inflicted with a cricket bat, leaving him with no memory of the incident and unable to identify his attacker.

Four eyewitnesses gave evidence that the appellant was present at the scene and was the person who struck the victim with the bat multiple times. Two of those witnesses had a close personal relationship with the appellant. After the assault, witnesses and a police officer observed the appellant break away from the group when a marked police vehicle approached.

The appellant was sentenced to 9 years and 4 months imprisonment with a non-parole period of 6 years and 6 months. He appealed against both the conviction and the sentence.

  • Whether the jury's verdict was unreasonable or unsupported by the evidence, given inconsistencies in the eyewitness accounts
  • Whether the trial miscarried due to the Crown Prosecutor's address to the jury
  • Whether the trial judge gave adequate directions concerning the appellant's conduct said to reflect a consciousness of guilt (that is, behaviour suggesting awareness of wrongdoing)
  • Whether the trial judge erred in treating the appellant's subjective features (personal circumstances) as relevant only to special circumstances rather than to the standard non-parole period
  • Whether the sentence was manifestly excessive

Decision

Unreasonable verdict: The Court applied the established test from M v R and MFA v R, asking whether the evidence was such that a significant possibility existed that an innocent person had been convicted. Despite inconsistencies across the four eyewitnesses, each independently identified the appellant as the perpetrator. Two witnesses knew the appellant well enough that mistaken identity was not a realistic concern. The Court found it was plainly open to the jury to be satisfied beyond reasonable doubt and declined to intervene.

Crown Prosecutor's address and jury directions: The Court considered both the conduct of the Crown Prosecutor's closing address and the adequacy of the trial judge's directions on consciousness of guilt. The appellant's behaviour in departing the group when police approached, and other post-offence conduct, were relied upon as evidence of a guilty mind. The Court found no error in either the Crown's address or the directions given by the trial judge, and dismissed these grounds.

Sentence appeal: The appellant argued that the trial judge had incorrectly confined consideration of his personal circumstances to the question of special circumstances, rather than also applying them when assessing the standard non-parole period. The Court accepted that subjective features are properly considered in determining any departure from a standard non-parole period. However, having reviewed the sentence overall, the Court was not persuaded that the result was excessive. Sentencing statistics for section 33 offences suggested a heavier sentence would not have been inappropriate given the brutality of the attack. The Court also noted that the trial judge had not expressly identified the cricket bat as a weapon (an aggravating factor) and had not directly addressed general deterrence, both of which may have operated in the appellant's favour.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted, but appeal dismissed.

Key Takeaways

  • Where multiple eyewitnesses with close familiarity with the accused each identify that person as the perpetrator, inconsistencies in peripheral details of their accounts will not necessarily render a verdict unreasonable.
  • Under the principles in M v R and MFA v R, an appellate court will only set aside a verdict where the evidence creates a significant possibility that an innocent person was convicted, after making full allowance for the jury's advantage in assessing witnesses.
  • Subjective features of an offender are relevant not only to whether special circumstances exist for varying the non-parole period, but also to the court's assessment of the appropriate standard non-parole period and any departure from it.
  • In dismissing the sentence appeal, the Court of Criminal Appeal noted that omissions by the sentencing judge, including failing to identify weapon use as an aggravating factor and not addressing general deterrence, had apparently worked in the appellant's favour rather than to his detriment.
  • General deterrence remains a significant sentencing consideration for serious, unprovoked assaults under section 33 of the Crimes Act 1900.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- Allen v R [2008] NSWCCA 11
- Causevic v R [2008] NSWCCA 238
- Dodds v R (2009) NSWCCA 78
- Livermore v R [2006] NSWCCA 334; 67 NSWLR 659
- M v R (1994) 181 CLR 487
- MFA v R (2002) 213 CLR 606
- 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