R v Gersteling [2000] NSWCCA 316

New South Wales Court of Criminal Appeal

CITATION : R v Gersteling [2000] NSWCCA 316 FILE NUMBER(S) : CCA 60029/2000 HEARING DATE(S) : 11/08/2000 JUDGMENT DATE : 11 August 2000

PARTIES : Regina v Jay Gersteling JUDGMENT OF : James J at 1; Dowd J at 22

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/51/0061; 99/51/0152 LOWER COURT JUDICIAL Twigg DCJ OFFICER :

COUNSEL : R Burgess - Applicant RD Ellis - Crown SOLICITORS : DJ Humphreys SE O'Connor

DECISION : Leave to appeal granted - appeal allowed

IN THE COURT OF CRIMINAL APPEAL 60029/00 JAMES J DOWD J

Friday 11 August 2000 REGINA v JAY GERSTELING JUDGMENT 1 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. 2 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. 3 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. 4 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. 5 The sentences imposed by his Honour were as follows:- 6 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. 7 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". 8 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. 9 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". 10 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. 11 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.