R v Gersteling - [2000] NSWCCA 316

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Gersteling [2000] NSWCCA 316

FILE NUMBER(S):
60029/2000

HEARING DATE(S): 11/08/2000

JUDGMENT DATE: 11/08/2000

PARTIES:
Regina v Jay Gersteling

JUDGMENT OF: James J Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/51/0061, 99/51/0152

LOWER COURT JUDICIAL OFFICER: Twigg DCJ

COUNSEL:
R Burgess - Applicant
RD Ellis - Crown

SOLICITORS:
DJ Humphreys
SE O'Connor

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal granted - appeal allowed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60029/00
JAMES J
DOWD J
Friday 11 August 2000
REGINA v JAY GERSTELING
JUDGMENT

JAMES J: Jay Gersteling has applied for leave to appeal against sentences imposed on him in the District Court on 16 December 1999 by his Honour Judge Twigg.
The applicant had pleaded guilty to each of four counts in an indictment. He had also been committed for sentence on ten charges to which he had pleaded guilty in the local court. All of the offences were committed within a period of about a week from 30 November 1998 to 7 December 1998. Most of the offences on which he was committed for sentence were in fact committed in the course of one night, the night of 6 and 7 December 1998.
The four counts in the indictment were (1) receiving a portable stereo and a money tin (2) stealing a guitar "and other items", being the property of the Department of Education, from the Medlow Public School, Taylor’s Arm (3) stealing a motor vehicle (a Datsun) (4) attempting to break and enter the Mobil service station at Dorrigo with the intent to commit the felony of stealing.
The ten charges on which the applicant was committed for sentence were (1) stealing a motor vehicle (a Suzuki four-wheel drive) (2) breaking and entering the Medlow Public School and stealing a video cassette recorder and a number of pairs of scissors (3) stealing a motor vehicle (a Holden Camira) (4) stealing a motor vehicle (a Holden Commodore) (5) breaking and entering the Mobil service station at Bonville and stealing a cash register, for which compensation of $7,000 was sought (6) breaking and entering a shop at Bellingen and stealing a number of goods, including a small quantity of cigarettes, tobacco, confectionery and soft drink (7) breaking and entering the National Parks and Wildlife Service office at Dorrigo with intent to commit a felony therein (8) breaking and entering the office of a real estate firm with intent to commit a felony therein (9) driving a vehicle (a Toyota Hilux) without the consent of the owner (10) stealing and driving a vehicle (a Holden Torana) without the consent of the owner.
The sentences imposed by his Honour were as follows:-
On the first count in the indictment, a sentence of a fixed term of imprisonment of six months to date from 6 December 1999, the date of sentencing; on each of the charges of stealing a motor vehicle, that is the third count in the indictment and the first, third and fourth charges in the committal for sentence, a term of penal servitude of five years, consisting of a minimum term of two years to date from 16 December 1999 and an additional term of three years; on the second count in the indictment, a fixed term of imprisonment of six months to date from 16 December 1999; on the fourth count in the indictment, a fixed term of penal servitude of two years to date from 16 December 1999; on each of the second, fifth, sixth, seventh and eighth charges in the committal for sentence, a fixed term of penal servitude of six months to date from 16 December 1999; on each of the ninth and tenth charges in the committal for sentence, a fixed term of imprisonment of one year to date from 16 December 1999. The total effective sentence was, accordingly, fixed terms or minimum terms totalling two years and an additional term of three years.
In his remarks on sentence his Honour said that he did not propose to set out in detail the facts of the offences, because, his Honour said, the facts were fully set out in fact sheets which had been prepared and in what his Honour described, accurately, as “a host of statements”.
His Honour had been presented with a daunting mass of material, which was not in a well organised form. It is in fact a task requiring considerable patience to endeavour to extract, from the fact sheets and witness statements, the facts relating to each offence. This Court is indebted to the applicant's legal representatives for the preparation of a schedule, which has considerably assisted the Court.
After saying that he did not propose to set out the details of the facts of the offences, his Honour added that it was sufficient to say that “the events occurred substantially at the end of 1998 in and around Macksville, when, on a number of occasions, the prisoner, said to be either under the effect of drugs or suffering from a phase of manic depression, broke into premises, stole motor cars, stole cash, stole property, the majority of which has not been recovered”.
In his remarks on sentence his Honour then turned to the subjective circumstances of the applicant. The applicant was born in June 1980 and was accordingly eighteen years old at the time of committing the offences. He had a good family background and he was living with his parents at the time of the proceedings on sentence. The applicant had some previous convictions in the Childrens Court for breaking, entering and stealing. He was also subject to two recognizances and on probation, at the time of committing the offences.
A most important subjective circumstance of the applicant was his mental state. His Honour referred to a report by Dr Delaforce, psychiatrist. In his report Dr Delaforce diagnosed the applicant as suffering from the following mental disorders (a) a major depressive disorder, recurrent with seasonal pattern and (b) cannabis dependency, sustained full remission. Dr Delaforce continued in his report;
"his worst episode of the Major Depressive Disorder was in 1997 when the severity was severe with psychotic features because of his auditory hallucinations at the time. During the winter of 1998 and 1999 he had a Major Depressive Episode of mild severity.
Some of the details he gave about a period of about five days functioning in 1998 after the depressed state suggested a Manic Episode or the less severe Hypomanic Episode. The details his parents gave about his functioning in November 1997, November 1998, and in early 1999, suggested much more the presence of either of these episodes. Had he not been using substances at the time, marijuana in 1997, 1998, and 1999, and also amphetamines in 1998, I would have concluded, and based upon the details provided by his parents, that he had at least a Hypomanic Episode, if not a Manic Episode. The presence of either one of those episodes would change the diagnosis from Major Depressive Disorder to Bipolar Disorder, which used to be called manic depressive illness. Nevertheless I would not forever exclude a diagnosis of Bipolar Disorder. Further assessment or the passage of time may clarify the diagnosis.
The Cannabis Dependence has been present since 1997 and has been in sustained full remission since about April 1999”.
It was submitted on behalf of the applicant in written submissions that the sentencing judge made a number of factual errors in sentencing the applicant and that in any event the sentences imposed were manifestly excessive, having regard to the facts that all of the offences were committed within a few days of each other and should be regarded as a continuing course of criminal conduct; that the break and enter offences were not committed in private homes or in circumstances where persons were in the buildings broken into; most importantly, the applicant's mental illness; the applicant's other subjective features, including his youth, his co-operation, his pleas of guilty and his contrition and the fact that all of the offences could have been dealt with in the local court. It was also submitted that the offences which his Honour had selected for the imposition of the more severe sentences were offences of lesser criminality than some of the other offences.
In my opinion, his Honour did misstate some material facts in his remarks on sentence. His Honour described the fourth count in the indictment as being “break enter a Mobil service station and steal”. In fact, the offence charged in the fourth count of the indictment was attempting to break and enter with intent to commit a felony.
In his remarks his Honour described the fifth charge in the committal for sentence as being "break enter a Mobil service station in Bonville and steal $7,000." Later in his remarks his Honour said, "the applicant stole cash".
In none of the other offences in the indictment or in the committal for sentence is it alleged that the applicant stole cash and it is clear that what the applicant stole in committing the fifth offence in the committal for sentence was, not $7,000 in cash, but an empty piece of office equipment, described in some places in the papers as a cash register and in other places as a safe, for the loss of which the owner claimed $7,000 in compensation. Although a cash register or a safe is a valuable object, an offence of stealing an empty cash register or safe is, in my opinion, a different sort of offence from an offence of stealing a large amount of cash.
In his brief summary of the facts of the offences his Honour said that the applicant “stole motor cars, stole cash, stole property, the majority of which has not been recovered”. It is unclear whether his Honour intended the words "the majority of which not been recovered" to apply to all of the things the applicant had stolen or only to property other than motor cars and cash. However, the greater part of what the applicant stole or took consisted of motor vehicles and in fact all of the motor vehicles that were stolen or taken by the applicant were recovered, albeit some of them were in a damaged condition. In such circumstances his Honour’s assertion “the majority of which has not been recovered” was, at best, misleading.
His Honour's statement that the offences had been committed “on a number of occasions… at the end of 1998” obscured the short time span within which all of the offences were committed.
I conclude that his Honour did misstate some material facts and for that reason I consider that his Honour's sentencing discretion miscarried. Accordingly, it is necessary for this Court to exercise afresh the sentencing discretion originally exercised by his Honour.
I have already referred to the objective facts of the offences and to the principal subjective circumstances of the applicant. All the offences were committed within a few days of each other, many of them on the same night, when the applicant was eighteen years old and suffering from a serious mental disorder, even if he was not suffering from a bipolar condition.
It was submitted by counsel for the applicant that the applicant's use of cannabis could be connected with the depression from which the applicant suffered and that the offences committed by the applicant were unplanned offences, not carried out in any professional manner. Between the time of being released on bail and the time of being sentenced the applicant had spent eleven months living with his parents, not re-offending during that period. During this period he had, for the first time, obtained psychiatric help and his parents had noted a considerable difference in him. I accept these submissions made by counsel for the applicant.
The Crown relied particularly on the number of offences, that the applicant had previously committed offences of the same sort, the seriousness with which the law regards the offence of breaking, entering and stealing and the circumstances of aggravation that the offences were committed while the applicant was on recognizance and on probation.
Having taken all of these matters into account, I consider that the appeal should be allowed and the sentences imposed by Judge Twigg should be quashed. I would propose that the following sentences be imposed.
On all of the four offences in the indictment and all the offences in the committal for sentence, apart from the offences in counts two, five and six, I would propose that a fixed term of imprisonment of 12 months commencing from 16 December 1999 be imposed.
I would propose that on the second, fifth and sixth counts in the committal for sentence, which are offences of breaking, entering and stealing, a sentence of imprisonment for three years should be imposed, consisting of a non parole period of six months commencing on 16 December 2000 and expiring on 15 June 2001, together with a parole period of two and a half years. The earliest date on which the applicant would be eligible for release on parole would be 16 June 2001. The intent is to impose an effective sentence of four years, with a non parole period of one and a half years and a parole period of two and a half years.
DOWD J: I agree with the proposed orders and his Honour's reasons therefore.
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LAST UPDATED: 22/08/2000