Prison term far below state guidelines for man who said years of father's abuse drove him to murder

A prison sentence far below state guidelines was given to a New Prague man after he told a judge that the years of physical and emotional abuse suffered by his mother and him at his father's hands prompted him to end the torment with a single gunshot.

Austin J. Herbst, 27, of New Prague, was sentenced by Scott County District Judge Carrie Lennon to 12 ½ years in the death of 57-year-old Gary A. Herbst, whose bullet-punctured skull was sniffed out by a dog who then carried it home in the woods south of Barron, Wis., in December 2017.

Sentencing guidelines called for a term ranging from 21 ¾ to 30 ½ years. Prosecutors argued for the maximum, which would have kept Herbst locked up for about 20 years.

Instead, with credit for time in jail since his arrest in November, Herbst will serve about 7 ¾ years in prison and the balance on supervised release after pleading guilty to second-degree intentional murder.

"To this day, I believe he was going to kill her that night," Austin Herbst is quoted in a presentence defense argument filed one day before the judge chose Friday to depart from state guidelines. "If I would have stood aside, my mom would be dead. I knew what I did and why I did it, and to this day I am confident that my decisions were justified."

Gary Herbst was killed in the family's home in Elko New Market by Austin Herbst on July 6, 2013. The body remained in the home until mid-August of that year, when the mother and son dumped it in the woods near Barron, Wis.

Connie L. Herbst, 63, remains jailed, charged with aiding and abetting second-degree murder. She's due back in court on July 14.

The son went on to explain in the defense filing that he took his father's handgun from under the couch and shot him in the back of the head while he slept to free his mother "from a prison, and I put her back in one. ... I am really hoping she gets a reduced sentence. It wasn't her fault."

The defense arguments revealed many accusations spanning years of Gary Herbst being a "cruel, dangerous bully to his wife and son."

Gary Herbst threatened many times to kill his wife in their 30-year marriage. The son alleged his mother wasn't allowed to have any friends or to speak with family. "He didn't even allow her to go to her mother's funeral," Austin Herbst said. He recalled his father often hit his mother: "My mother always had bruises that I noticed as a kid."

The son said he was a target, too. "He was angry at me for interrupting and put a cigarette out on me" at age 6 or 7.

Pushing for the maximum sentence, the prosecution argued Austin Herbst "executed his father [and] then threw away his father like yesterday's trash." Prosecutors also noted how Gary Herbst was sleeping in his own house and helpless when he was shot by his son. They said the son could have hidden the gun while his father slept or warned his mother, who was at the local library.

"Instead, [the] defendant simply made the choice to kill his father because [he] had the opportunity," the prosecution argued. "He chose to murder his father as a matter of convenience."

Following the discovery of the skull in late 2017, the rest of the remains soon were found by Barron County deputies. It was another 2 ½ years before they were identified.

In June 2020, after authorities said the remains were Gary Herbst, former neighbors told police they saw the family pickup behind the home after dark in mid-August 2013. One neighbor said the mother and son loaded what looked like rolled-up carpeting.

Police interviewed Austin Herbst on July 28, 2020, and learned he and his mom had gone camping in Wisconsin on the weekend after the last known whereabouts of his father.

Paul Walsh • 612-673-4482