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…

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 R v Gersteling

Details

AGLC: R v Gersteling [2004] NSWSC 502
Case: [2004] NSWSC 502
Decision Date: 8 April 2004

CaseChat Overview and Summary

In the case of R v Gersteling, the respondent was charged as an accessory after the fact to a murder. The victim, a young woman, was murdered by her partner, and the respondent assisted the perpetrator by helping him evade capture. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was the appropriate sentence to be imposed on the respondent, given the severity of the offence and the nature of his involvement.

The court examined the principles governing sentencing for accessory after the fact offences, considering the degree of involvement and the gravity of the underlying crime. The respondent argued that his role was minimal and that he should receive a lenient sentence. The prosecution contended that the respondent’s assistance in evading justice significantly contributed to the perpetrator’s ability to escape responsibility for the heinous crime, warranting a more severe penalty. The court weighed these arguments and ultimately concluded that while the respondent's participation was not direct, his actions were critical in enabling the perpetrator to evade justice. The court held that the sentence should reflect the seriousness of the underlying offence and the respondent's substantial involvement.

After careful consideration, the court determined that the sentence should be commensurate with the gravity of the crime and the respondent's role in facilitating the perpetrator's escape from justice. The court sentenced the respondent to a term of imprisonment, reflecting both the severity of the underlying murder and the respondent's significant contribution to the evasion of justice. The court's decision underscored the importance of holding accessories accountable for their actions, ensuring that their sentences appropriately reflect the gravity of their involvement in serious crimes.

Orders