REGINA v GERSTELING [2004] NSWSC 502

New South Wales Supreme Court

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 Regina

PARTIES : 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.