R v van KREVEL [2003] NSWSC 227

New South Wales Supreme Court

CITATION : R v van KREVEL [2003] NSWSC 227 HEARING DATE(S) : 10/02/03, 21/03/03 JUDGMENT DATE : 4 April 2003 JURISDICTION: Common Law JUDGMENT OF : Barr J at 1 DECISION : The offender is sentenced to imprisonment for a period of six years commencing on 1 June 2001. A non-parole period of four years, which will expire on 31 May 2005, is fixed. She will become eligible for release on parole on that day.

CATCHWORDS : Criminal law - sentencing - soliciting to murder PARTIES : REGINA (Crown) Belinda Jean van KREVEL (Offender) FILE NUMBER(S) : SC 70106/01 COUNSEL : Crown: T Thorpe Offender: J Stratton SOLICITORS : Crown: SE O'Connor Offender: B Duchen

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Friday, 4 April 2003

70106/01 REGINA v Belinda Jean van KREVEL

JUDGMENT 1 HIS HONOUR: The offender, Belinda Jean van Krevel, was arraigned on 10 February 2003 on an indictment containing two counts. The first charged her with the murder of Jack van Krevel. The second charged her alternatively with soliciting Keith Schreiber to murder Jack van Krevel. She pleaded guilty to the alternative count and the Crown accepted the plea in satisfaction of the indictment. It is agreed between the parties that in due course Keith Schreiber did murder Jack van Krevel. 2 But for a submission made by the Crown on sentence it might have been left without articulation that the offender is not guilty of murder either as a principal or as an accessory but only of soliciting to murder. The offence of solicitation was complete as soon as the words of solicitation were uttered. No murder was necessary for that offence to have been committed. 3 The Crown conceded that the offender was not to be sentenced as a murderer or as an accessory before the fact of murder but submitted that the Court could take into account as a matter of aggravation the fact that the intended victim was killed. I do not accept that submission. The criminality of the offender cannot be higher because of the killing unless she is to be held in some way responsible for the killing. There could be no responsibility for the killing unless the offender were proved to have made herself a principal or an accessory to the murder. However, in my view the Crown's acceptance of the plea of guilty to the alternative count in discharge of the indictment involved an abandonment of any assertion that the offender was responsible for the killing and of any right to contend that she should be sentenced for the killing. 4 The offender and Mark Valera were children of the deceased, Jack van Krevel, and grew up in his household. The deceased systematically abused Valera from the time he was five years old. The abuse took a number of forms, including hitting him with a fist or with an open hand, kicking him and, on at least one occasion, holding a gun to his head. On at least one occasion the bashing was so hard that Valera had to be taken to hospital. The offender used to see and hear what the deceased was doing. He abused her as well. Sometimes he would beat her until she wet herself. 5 Valera was best friends with Keith Schreiber and Schreiber knew about the way Valera had suffered at the hands of the deceased. Valera stood trial for the murder of two people not directly connected to the events giving rise to this charge and it became relevant at his trial for evidence to be given about the way the deceased had treated him. The deceased gave evidence and admitted physical abuse. Valera also claimed something not admitted by the deceased, namely that he had also abused him sexually. Schreiber knew about Valera's complaints in that regard and may be taken to have believed them. He consequently harboured strong ill feelings for the deceased. 6 At some time before Valera's trial the offender and Schreiber commenced a sexual relationship. The offender shared Schreiber's dislike of the deceased because of what she believed he had done to Valera, because of what he had done to her and because of her belief, resulting from what her young daughter had told her, that the deceased had sexually molested her as well. 7 One of the effects of the evidence given at Valera's trial was a freshening of the offender's and Schreiber's dislike of the deceased. It is possible that Valera overstated the seriousness of what the deceased had done to him. His defence was provocation and he had an interest in doing so. It is also possible that the deceased had not done all that the offender and Schreiber believed. It is possible that he had not molested the offender's daughter. None of those things matters, however. The important thing is, as I accept, that the offender and Schreiber believed what Valera was saying about the deceased and that the offender believed what her daughter told her about him. 8 On 8 August 2000 Valera was convicted on the two counts of murder. The offender told a number of people afterwards that she hated the deceased and wanted him dead. She said that she blamed him for what had happened to Valera. 9 The evidence about the solicitation comes from the record of an interview Schreiber had with the police after his arrest for the murder of the deceased. There were these questions and answers - Q151 How long ago did you start thinking about killing him? A I'm not sure. Don't know. For a little while, but Belinda's told me he, they got into a argument and Jack said to her, "I really hope that pissy little ant poofter Keith fucking comes here and kills me, tries to kill me", that's what Belinda told me, so, I can, he only got what he asked for anyway. Q152 So did that, that sort of thing spur you on a bit? A Yeah, a bit. Q153 Was it then that you decided you were going to do something about it, or you -? A Yeah, sort of. Q154 Had you discussed with Belinda what you were going to do? A No. Q155 Did she ask you to do it? A Yeah, I knew she wanted, she wanted him done. Q156 She wanted him done? A Mm. Q157 When did she tell you that? A A while ago, when, when Mark's trial started. Q158 Did she ask you to do it? A No. I think so, she, "Would you do it?", yeah. I said, "No, don't know, not really". Q159 You declined her offer? A I don't know if she was serious or not. Don't think so. She might have been. 10 Schreiber entered the deceased's house in the early hours of the morning of 18 August 2000. The deceased was in his bedroom. The offender was with her daughter in their bedroom nearby and could hear everything that happened. Schreiber killed the deceased in a remarkably brutal way by means of an axe and a knife which he took in with him and a poker which he obtained from another room in the house in the midst of the attack. He inflicted a large number of wounds, including post-mortem mutilation. The attack must have lasted a long time and produced a lot of noise. The offender stayed in her room throughout the attack, never trying to intervene or raise the alarm, although she had a mobile telephone with her. She waited until Schreiber had left the house and then went with her daughter to the police station. She said that she had heard noises and that there was blood in the house. She did not mention Schreiber. Afterwards she visited Schreiber in gaol, sent him money and made declarations of love for him. 11 I mention these matters not to suggest that the offender stands to be punished for what Schreiber did or for any assistance her passiveness may have given him but as supporting my conclusion that her request to Schreiber to kill the deceased was genuine, borne of a continuing hatred of the deceased. 12 At counsel's invitation I viewed a video tape-recording of the interview held between Schreiber and the police. If the facts of the murder were not enough, that document would demonstrate what a seriously disturbed young man Schreiber was. He said a number of inconsistent things during the interview and that and his demeanour throughout causes me to doubt the accuracy of some of what he said. I am satisfied that he was not being frank when he told the police that he did not know whether the offender was serious or not and that he did not think that she was. I think that he said those things to try to protect the offender. 13 The offender well knew what kind of man Schreiber was. She knew that he involved himself in Satanism and other bizarre practices. He and Valera used to play music that carried themes of mutilation. Valera mutilated his two victims. 14 I am satisfied that when she asked Schreiber to kill the deceased the offender believed that there was every prospect that he would do so. Her desire to have the deceased killed continued up to the moment of his death. 15 The offender was born on 21 August 1980. Her mother abandoned her and Valera when the offender was two years old. She was raised by the deceased. When she was seventeen years old she gave birth to her daughter, who is now five years old. She has never had paid employment. She has a minor criminal record which I disregard for present purposes. 16 She was arrested on 1 June 2001 and charged with the murder of the deceased. She has been in custody ever since. She was committed to this Court for trial and pleaded not guilty to murder when arraigned on 12 April 2002. There was then no alternative charge of soliciting, but the parties agree that the offender's legal representative then offered a plea of guilty to soliciting in discharge of the indictment. The Crown refused the offer. The offender's trial began in July 2002 but the jury were discharged and a new trial was fixed for 3 February 2003. Again the jury were empanelled and discharged and on 10 February 2003 the Crown amended the indictment to plead the alternative count. The offender pleaded guilty. In the circumstances she is entitled to be treated as having pleaded guilty on the earliest possible occasion and to receive a sentence significantly less than would otherwise have applied in recognition of the saving in public inconvenience, time and money that would have resulted if her offer had been accepted, the measure of the value of her willingness to assist in the administration of justice. I have accordingly reduced the offender's sentence. 17 After the arrest of the offender an allegation was made by a female police officer that the male police officer who was at that time in charge of the investigation had stolen a pair of earrings the property of the offender. The female police officer and the officer in charge were in a sexual relationship at the time. The officer in charge was asked about the matter and denied the theft. The female police officer's complaint included an assertion that she and her daughter had worn the earrings. DNA tests demonstrated the presence on the earrings of material matching the female officer. 18 The offender had not complained about the matter because she had not realised that the earrings were stolen but when these things were brought to her attention she offered or agreed to assist in the investigation of the alleged offence and, if the matter should come to court, to give evidence. 19 In the end the prosecuting authorities decided not to bring any charge against the former officer in charge, so the assistance of the offender was not needed and her offer to assist was of no practical value to the authorities. The matter was a small one, though not unimportant. I have made a modest allowance in recognition of the offender's preparedness to assist. 20 The offender saw Dr Nielssen for a psychiatric report. Dr Nielssen reviewed reports of Drs Giuffrida and O'Dea, psychiatrists who had seen the offender since her arrest. She told Dr Nielssen that Dr Giuffrida had diagnosed post-traumatic stress disorder and agoraphobia, resulting from her childhood abuse and had prescribed anti-depressant and anti-psychotic medication. There was confirmation from Corrections Health Service Medical Records. She said that Dr O'Dea had withdrawn anti-psychotic medication. She was currently taking Valium and claimed to have suffered severe anxiety since entering gaol, associated with the recollection of her childhood experiences. 21 Dr Nielssen ascertained from the record that Dr Giuffrida thought that the offender did not have any psychotic illness but attributed her symptoms to depersonalisation arising as part of a post-traumatic stress disorder arising from abuse during childhood. Dr Giuffrida reported a history of extensive abuse of stimulants from the age of fourteen and amphetamine-induced pseudo hallucinations. Dr O'Dea found her to have a generalised anxiety disorder. 22 The offender denied to Dr Nielssen any abuse of alcohol or illicit drugs, though Dr Giuffrida's notes showed that she was not telling both psychiatrists the truth. She told Dr Nielssen that she was being held in solitary confinement (sic) and did not understand why because there had been only one incident of aggression early in her detention, when she smashed a window. 23 Dr Nielssen thought that the offender would probably meet the criteria for a diagnosis of personality disorder based on the history of a pattern of maladaptive behaviour resulting in distress to herself and others, lasting into adult life. He expressed diffidence, however, about that diagnosis. He observed that the offender had been diagnosed as having post-traumatic stress disorder and generalised anxiety disorder, disorders that might be the result of experience in her distant and recent past. 24 Not long after she was taken into custody the offender began to commit breaches of prison discipline. On 9 July 2001 she attempted to escape. It was realised that she was missing and a substantial search was made before she and another inmate were found hiding in bins in the industrial area of the gaol. No charges were laid and she was dealt with under the Department's disciplinary code. She was placed in segregation. After that she repeatedly breached prison discipline. Between November 2001 and May 2002 she did so on sixteen occasions. The offences included intimidation, damaging or destroying property, using insulting, abusive or threatening language, disobeying directions and the like. 25 These matters led the offender to be dealt with by the High Risk Management Committee of the gaol. That committee meets monthly and reviews the question whether the offender should continue to be held in segregation. Evidence was received from the Deputy Governor of Mullawa Detention Centre, Mr Aboud, who informed the Court that the committee has continually renewed its decision to confine the offender in segregation because of her continuing poor attitude. However, Mr Aboud says that if she changes her attitude and her behaviour the committee may decide to remove her from segregation so that she can take her place in the ordinary prison population. He says that it is all up to her. 26 Dr Nielssen thought that what he called solitary confinement had probably contributed to the onset of an anxiety disorder for which the offender had received treatment with the sedating drugs. He thought that treatment with relatively high doses of anti-anxiety and other sedating medications may have combined with the stress and grief arising from her father's death, her separation from her daughter, the result of her brother's trial and her own predicament to produce transient psychotic symptoms and disturbed behaviour whilst in custody. 27 It was submitted on behalf of the offender, relying on Dr Nielssen's opinion, that she was entitled to mitigation of her sentence because of the undoubted hardship she is suffering from her segregation. There can be no doubt that she is being segregated because she will not behave herself. It seems possible that her segregation has contributed, through the process of cause and effect postulated by Dr Nielssen, to her disturbed behaviour. However, it is certain that her misbehaviour preceded her segregation, so that the latter could not, at least in the first place, have led to the former. 28 The difficulty I have in accepting Dr Nielssen's opinion arises from his reliance on what the offender has told him about her experience and activity in gaol. She has obviously been untruthful with him in a number of respects, a fact which he acknowledges. For example, she repeated to him her story, which I consider untrue, that she thought the noise from the deceased's room came from his assaulting an intruder. She told him that her relationship with Schreiber was fleeting, which it was not. Relevantly to the present problem, she told Dr Nielssen that there was no justification for her being held in what she called solitary confinement. What she did not tell Dr Nielssen, and what he appears not to have known, was that there were so many breaches of discipline, including eight occasions of intimidating others. 29 I think that the hardship the offender is suffering from her segregation is the result of her own deliberate and repeated misbehaviour. I am not satisfied that she suffers or has suffered from any condition, however arising, that might inhibit her ability to change her ways and behave herself. I accept the evidence of Mr Aboud that if the offender decides to stop misbehaving her period of segregation will probably soon end. As I shall explain, however, it does bear upon measures which will need to be taken to assist her rehabilitate herself. 30 Dr Nielssen thinks that the offender requires intensive psychological treatment. He would prefer to see long-term individual counselling, though his impression from their single interview was that the offender has a strong tendency to distort the facts and has little understanding or awareness of her emotional states, which could prevent her from drawing much benefit from psychotherapy at the moment. He thinks that her condition will probably improve when her future becomes more certain and that she will be able to get by on lower doses of anti-anxiety medication and participate in self-help groups and learning-based therapeutic programs. 31 I accept this opinion and think it likely that when she has been sentenced, there will probably be a change in the offender's attitude and in her ability to undertake programs designed to help her rehabilitation. 32 The offender lacked a mother and a mother figure throughout virtually the whole of her formative years. She found herself having to do much of the housework and preparing meals and was expected to look after her father and brother in those respects. Her attendance in high school was consequently poor, though she did learn to read and write. She completed a Year 10 certificate at TAFE but, as I have said, found herself a full-time mother when she was very young. She appears to have no hobbies or recreational interests. 33 The offender exercised her right not to give evidence on sentence. There is no direct claim that she is sorry for her offence. She told Dr Nielssen that still loved her father and wished he were alive. She said that she entered her plea because of the strength of the case against her rather than because she wanted the deceased dead. I doubt whether she is sorry for her offence and I regard the plea of guilty as no evidence of contrition. 34 The offence of soliciting to murder is very serious and attracts a maximum penalty of twenty-five years' imprisonment. The number of recorded sentences is few and there cannot be said to be any established pattern of sentencing for the offence. 35 I take into account that the offender's importunity was hot-blooded, borne of her belief, reinvigorated by the trial, about the deceased's responsibility for the predicament that Valera, she and her daughter found themselves in. I take into account that, as the offender well knew, her solicitation was likely to produce the result she desired. 36 Because of her upbringing and the denial to her of opportunities she ought to have had, the offender has limited resources with which to undertake the enormous task that now confronts her. Her mental condition, the fact that at least for the time being she will have to continue to take anti-depressant drugs and the substantial time that she has spent in segregation will combine to make it more difficult for her to respond to programs designed to promote her rehabilitation. Those matters will justify my fixing a non-parole period of less than three-quarters of the sentence. I think that there are reasonable prospects that when she settles down the offender will enter upon the process of rehabilitation and try not to offend again. I think that she has some prospects of success in that regard. 37 Belinda Jean van Krevel I sentence you to imprisonment for a period of six years commencing on 1 June 2001. I fix a non-parole period of four years, which will expire on 31 May 2005 and I declare that you will become eligible for release on parole on that day. ************