R v Gersteling

[2004] NSWSC 502

CITATION:

REGINA v GERSTELING [2004] NSWSC 502

HEARING DATE(S):

5-8 April 2004

JUDGMENT DATE:

8 April 2004

JURISDICTION:

Common Law

JUDGMENT OF:

Adams J at 1

DECISION:

The offender is to enter into a good behaviour bond for the period of three years subject to the following conditions - ; (i) That he accepts the supervision, direction and guidance of the Department of Juvenile Justice;; (ii) That he attend for personal counselling and assessment as directed by the appropriate officer having the management of his case;; (iii) That he attend as directed for counselling and assessment, including a residential rehabilitation program, concerning his use of drugs an alcohol; and; (iv) That he attend as directed any vocational and/or educational program.

CATCHWORDS:

CRIMINAL LAW - accessory after the fact to murder - sentence - no matter of principle

LEGISLATION CITED:

Children (Criminal Proceedings) Act 1987 s6

PARTIES :

Regina

v

Aden Gersteling (Offender)

FILE NUMBER(S):

SC 70010/04

COUNSEL:

Mr N A P Harrison (Crown)
Mr C Bruce (Offender)

SOLICITORS:

Mr A Horowitz (Crown)
Mr B Snelling (Legal Aid) (Offender)

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADAMS J

LISMORE: THURSDAY 8 APRIL 2004

70010/04 - REGINA v ADEN GERSTELING

SENTENCE

1 HIS HONOUR: The offender has pleaded guilty to the offence of being an accessory after the fact to the murder of Kane Mason by one Jessie Irvine at Macksville on 26 July 2003. He was then one month short of his sixteenth birthday. Irvine, who was a close friend of the offender, was himself but seventeen years of age. The deceased, Kane Mason, who was only twenty-four years of age, was shot in the chest by Irvine in a Macksville street in the early hours of the morning. They were unknown to each other. It is of crucial importance to appreciate at the outset that it is not alleged against the offender that he was either criminally or morally implicated in or responsible for Mr Mason's death. The case against the offender, in substance, is that he saw Irvine shoot Mr Mason from about twenty-five or thirty metres away, and that he picked up the gun when it was discarded by Irvine, in part to protect Irvine from detection and in part to ensure that Irvine did not use it again. The offender's concealment of the gun for the purpose, even in part, of assisting Irvine to escape detection, is the essence of his crime. The events surrounding the offence are not in dispute and the following is drawn largely from the agreed statement of facts and the offender's statement to the police.

2 The offender had spent the afternoon of the previous day at the home of one Michael Clifford aged nineteen, with Irvine, Clifford's girlfriend, Stephanie, and her friends Melanie and Jasmine. Stephanie and Melanie were both aged fifteen and Jasmine was sixteen years of age. The group were drinking and smoking marijuana. Irvine and Cooper were significantly affected, the offender somewhat less so. As the evening went on Irvine became more and more agitated and began to talk aggressively about blowing up cars and killing Aboriginals. The evidence suggests that the others did not take him seriously. I accept that the offender did not. Later, Irvine obtained a shotgun and ammunition from under the bedding in Cooper's bedroom, where it had been placed by Cooper the previous day. The gun was passed around and at about 1 am Irvine, Clifford and the offender left the flat and started walking down Matilda Street. Irvine was carrying the gun. Jasmine followed them outside. The three males were walking together. She thought that Irvine was still agitated. She ran towards them and called out several times, “What are you doing?” but both Irvine and Clifford told her to go away. When she continued to follow them, Irvine turned around and fired the gun into the air. She screamed and ran back to the flat. The gun was fired two more times and the window of a house was broken.

3 At about this time, the deceased, Kane Mason, and three of his friends, Darren Ward, Sam Monk and Michael Becker, all in their early twenties, were walking along the road on their way to a party in Station Street. Clifford approached the group from behind, making comments like “Where are you going?”, “You're not going there”. It seems that the deceased became irritated by this intrusive, stupid and perhaps aggressive behaviour. Mr Mason removed his shirt and he and Clifford started to fight. Clifford called out “Get them” or “Give it to them”, almost certainly to Irvine who was armed with the shotgun. Irvine came out from behind some bushes in a park and fired a shot that struck Ward in the face and chest. Irvine continued to walk towards Mason and, almost immediately, pushed Clifford out of the way, pointed the gun at Mason's chest and shot him. He died very shortly after, despite attempts by one of his friends to help him. Ward had been temporarily blinded. With Monk's assistance he ran up Station Street, away from the scene and was later taken to hospital with serious but not fatal injuries.

4 Irvine and Clifford ran up Station Street and away from the area with the offender following them. Irvine and Clifford separated and Irvine dropped the gun and ammunition in Station Street. Shortly after, the offender retrieved the gun and threw it into long grass near the railway line. He then ran back along a laneway behind the houses in Station Street, where he saw one Barry Veness sitting on the back steps. He said that he seemed shaken and frightened. Veness called his name. The offender told him “Jessie's just shot someone. I picked up the gun and ran”. Veness asked him “Where's the gun?” and the offender replied “At the end of the fence on the ground”. The offender then ran down the laneway and then ran across to the corner of Station Street in the direction of the train station, shortly after making his way back to Clifford's flat. Clifford had already returned home. Irvine returned a short time later.

5 The offender was bleeding from his hands and had blood on his pants and beanie. Melanie asked him, “What happened to your hands?” He told her, “I had to bail over a barbed wire fence, running from the coppers”. He later said that the gun was at the railway station. Irvine had a shower and changed his clothes. He then left for Port Macquarie, where he was arrested later that evening. Clifford and the offender, however, remained at the unit and were there when the police attended that afternoon. Both were arrested and taken to the Macksville Police Station.

6 The offender voluntarily participated in an electronically recorded interview and made frank admissions about what he knew of the events and what he did. The prosecution does not take issue with what he said and does not suggest that the offender was not candid. He told the police in answer to a series of questions –

“I first saw the firearm when Clifford had it in the lounge about 10.30. It was not loaded. I overheard Mick and Jess speaking in the next room; they were going on about wanting to kill somebody but I didn't ask them about it really. This was not said in a serious way. Mick and Jess left the house and they started heading off. Jessie had the gun. Jasmine started following them. I was behind Jasmine. Jess turned around and told her to fuck off and go home, but she kept following him and so he let a shot off in the air.
They took off, started running. Jasmine freaked and ran home. I went after them, trying to make sure they didn't kill anybody. Jessie fired the gun into the air two times, just to have some fun. However police found a window broken by shotgun pellets in the bedroom of premises in Matilda Street.
Jessie and Michael split up at the corner of Station Street and Princess Street. I was coming around the corner of Matilda Street going onto Station Street and they were just getting across the road. They were walking together and when they got about halfway across the road, then Mick's turned off, one of the black fellas said something and Mick's took off after them. Jess has just kept walking. I sat in the bushes and just waited for Mick.
I got there just as the fight had started. I was standing around from the council chambers about 20 or 30 metres away from them. They said something to Michael and Michael being himself snapped and gone mad. There were a few punches and kicks thrown here and there, but I couldn't really get a clear picture because it was from a fair distance.
It lasted about 10 seconds and then Jess ran over, going off his head. He was going 'I'm gunna shoot you cunts, you black cunts, I'm gunna fucking kill youse'. He's come out of the bushes with the gun; he's started going 'youse want to fucking die, bring it on'.
Irvine came along and blew this fella away. He was no more than 2 and a half or 3 metres away. Michael was pretty close to him as well, Jess ran into Michael and the other fella fighting, pushed Michael out of the way and blew him away.
As soon as that shot went I started freaking a bit myself, because I knew it had hit him. Michael's just split, instantly he's gone, Jess has gone, Jess has run past me, jumped over the fence, dropped the gun and the shells. He was going 'What did I do, what did I do?' He was really drunk. He didn't know what the hell he'd done.”

7 The offender also told Dr Delaforce that he told Jessie that he had shot someone and to “get the heck out of the place”. Jess took off towards the train station.

”After everyone ran away I was around there for about ten minutes” [I think this is a considerable overstatement and was probably no more than two or three minutes] “looking for the gun. I wasn't gunna leave until I had it because it's got my best mate's prints on it. I found a couple of bullets lying in a bag on the side of the road. That was about five or ten minutes after the incident. I grabbed it and went and stashed it. I grabbed the gun and the shells and started running. I chucked the shells in some fella's garden and I dropped the gun off down near the train station, just threw it in the grass. I've seen the police drive down here, so I've gone, tried to find the gun, I couldn't find it. I couldn't find that, so I jumped back over and cut myself on the way over, then I was running along through backyards and I fell in a big ditch here, full of water and mud.
I went back to Michael's and tried to forgot about it. I changed my clothes and washed my hands because I had blood on my hands from where I jumped over the fence. When I got back to the unit there was only Melanie and Stephanie and Jasmine. Michael was next door. I told the girls what happened and I said 'Someone's been shot and he's probably not alive'.”

8 The offender described his state of intoxication as moderately affected adding “I was not staggering or nothing, I could still walk straight, I still knew what I was doing”. During the interview, the offender drew a map showing where he had thrown the gun and the ammunition, which was used by police to locate them. As I have already mentioned, the offender concealed the gun in order to prevent his friend Irvine from being identified as the person that had shot Mr Mason and when he was first spoken to by the police at the flat at about 1pm on the afternoon of the shooting, he denied seeing what had happened. He was then arrested and brought to the police station. He then gave a voluntary statement to the police in which he told them what had occurred, including the involvement of Irvine and Clifford. Thus the offender voluntarily desisted in the continuation of his offence at a very early stage.

9 The maximum term of imprisonment for the offence of being an accessory after the fact to murder is twenty five years. This penalty is aimed, of course, for cases of the most serious kind. It is unnecessary for me to consider what elements might be involved in a case of such gravity, since this case does not remotely fall into this class. Objectively, the circumstances have some serious features. Not only did the offender attempt to conceal the guilt of a person who had committed a very serious crime by hiding evidence but that evidence was itself a shotgun and ammunition. On the other hand, the offender himself brought his offence to an end and assisted the police by both identifying the principal offender and telling them where the gun and ammunition might be found. Furthermore, the offender was not motivated by personal gain or hope for reward. I have concluded that the offender's attempt to conceal the weapon and ammunition arose from an impulsive and instinctive desire to help his closest friend, whose extraordinary behaviour he was at that time unable to consider with any level of emotional detachment. At a later point in time, he also thought that he should place the weapon where Irvine would not be able to retrieve it to do some more damage. I am satisfied that the offender had been frightened by what he had witnessed and resolved his emotional and moral turmoil by the relatively straightforward, though illegal and foolish, action of helping a friend. I am also satisfied that, by the time he came to be interviewed, he had come to his senses and decided that he would cooperate with the police investigation. This provides cogent evidence of contrition.

10 Let me then deal with the subjective circumstances of the offender. These have been extensively set out in reports by Mr Otto, a Juvenile Justice Officer with the Department of Juvenile Justice, and Dr Robert Delaforce, a forensic psychiatrist. The offender’s family background is unremarkable. Like many children, he became rebellious in early teenage years. Unfortunately, he started using cannabis and this, as is so often the case, not only adversely affected his behaviour and mental health but also his education. He and Irvine grew up together and Irvine was his closest friend. He had also known Clifford for many years and thought of him as a friend. He knew that both could become violent when affected either by cannabis or alcohol but obviously lacked the maturity to maintain his distance from them. The offender told Dr Delaforce that another friend of his had been diagnosed with cannabis induced schizophrenia in about 2002 and he had tried to help him. It is indeed troubling that the offender apparently has not learned from this that significant mental illness can be caused by chronic cannabis use. He has been a heavy user of cannabis from the age of fifteen. Although he started to reduce his use shortly before the commission of this offence and managed to keep to this until some weeks ago, I am prepared to accept that his re-commencement resulted from stress arising from the impending sentence proceedings. However, it is obvious that the offender needs to stop using cannabis all together, not only because of the criminal law but also for the sake of his health and welfare.

11 The offender started Year 10 studies at TAFE in 2003 without any application, contributed to significantly by his heavy cannabis use with associated depressed feelings and misbehaviour. However, the substance of the matter is that he took no responsibility for himself and, I think, refused to acknowledge his parents’ concern. Generally speaking, it appears that the offender's behaviour has improved in recent months, although he still has some way to go and still very much needs the continuing support and guidance of his parents. Aside from some relatively minor occasions, the offender has not demonstrated any violent behaviours. He is plainly capable of benefiting from further education.

12 All in all, I think that the criminal conduct that has brought this offender into this Court should be regarded as an aberration. The offender, as I have mentioned, confessed to the police when he was first formally interviewed and pleaded guilty at the first available opportunity. The case against him, if the confessions to the police were not admitted into evidence, was far from strong and, as his counsel rightly advised him, the failure by the police to comply with the relevant statutory regime would have been likely to have resulted in their exclusion, with the result that, had the case gone to trial his acquittal was certainly on the cards. The offender's decision to plead guilty nevertheless, taken in consultation with his parents, is strong evidence of remorse and contrition, a conclusion which is supported by other evidence which it is unnecessary to detail. It also shows a willingness to acknowledge his responsibility for serious wrongdoing.

13 Not surprisingly, the killing of Mr Mason has shocked many people in the district and the offender has been verbally and physically abused, although as I have mentioned, he was not involved in this offence except as an accessory after the fact for a short time. There are suggestions in the evidence that there was a racial motive involved in Mr Mason's murder. Whatever the truth about this, there is no evidence at all that anything that the offender did was affected by racist attitudes or, for that matter, that he has any. Moreover, it appears there is good reason for thinking the contrary.

14 Having regard to both the objective and subjective circumstances of this case, I am satisfied that the offender's prospects of rehabilitation are good, although continuing support will be necessary. Courts of the highest authority and by which I am bound have said many times that, in dealing with young offenders, the public interest – quite apart from the interest of the offender, requires that considerable weight be given to their prospective rehabilitation, bearing in mind, of course, the public interest in punishing serious crimes. These considerations are reflected in the provisions of the Children (Criminal Proceedings) Act 1987 which, in section 6, requires the court to have regard to the following principles –

“That children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

That it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, and

That it is desirable, wherever possible, to allow a child to reside in his or her own home.”

15 I have no doubt that this is not an appropriate case in which a custodial sentence is warranted, even having regard to the objective seriousness of the offender's conduct considered alone. This conclusion is reinforced when the subjective features which I have mentioned are taken into account as the law requires. It is for this reason that I do not consider that a suspended sentence is appropriate. In the result, I consider that the interests of justice as well as the interest of the public in the offender's rehabilitation are best served by not imposing a sentence of imprisonment but by making an order directing the offender to enter into a good behaviour bond for the period of three years subject to the following conditions –

(i) That he accepts the supervision, direction and guidance of the Department of Juvenile Justice;
(ii) That he attend for personal counselling and assessment as directed by the appropriate officer having the management of his case;
(iii) That he attend as directed for counselling and assessment, including a residential rehabilitation program, concerning his use of drugs an alcohol; and
(iv) That he attend as directed any vocational and/or educational program.

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Last Modified: 06/10/2004