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Supreme Court 4 April 2003

R v van KREVEL

[2003] NSWSC 227

Public order & justice offences
CRIMINAL LAW SENTENCING SOLICITING TO MURDER

Citation: R v van Krevel [2003] NSWSC 227
Court: Supreme Court of New South Wales (Common Law Division)
Date: 4 April 2003
Judge: Barr J

Background

The offender was charged with the murder of her father, Jack van Krevel, as well as an alternative count of soliciting Keith Schreiber to murder him. She pleaded guilty to the solicitation count, and the Crown accepted that plea in full satisfaction of the indictment. It was agreed that Schreiber did in fact subsequently murder Jack van Krevel.

Both the offender and her brother, Mark Valera, had grown up in the deceased's household and suffered serious physical abuse at his hands. The offender also believed the deceased had sexually abused both Valera and her young daughter. Those beliefs were reinforced during Valera's unrelated murder trial, at which the deceased gave evidence admitting physical abuse. The offender and Schreiber, who were in a sexual relationship, shared an intense dislike of the deceased arising from these circumstances.

The solicitation itself was conveyed informally, with the offender asking Schreiber words to the effect of "Would you do it?" The court found, on the basis of Schreiber's police interview, that the request was genuine and that the offender believed there was every prospect Schreiber would act on it.

  • Whether the fact that the solicited murder was actually carried out could be treated as an aggravating factor on sentence
  • Whether the Crown's acceptance of the guilty plea to the solicitation count foreclosed any assertion that the offender bore responsibility for the killing itself
  • How the offender's traumatic background, limited rehabilitation prospects, and absence of demonstrated contrition should be weighed in determining the appropriate sentence and non-parole period

Decision

The court rejected the Crown's submission that the actual killing of the deceased could be treated as an aggravating circumstance. Barr J reasoned that the offender's criminality could not be elevated by the killing unless she were shown to be responsible for it, either as a principal or accessory to murder. By accepting the guilty plea to solicitation in discharge of the indictment, the Crown had effectively abandoned any claim that she bore such responsibility.

The court emphasised that the offence of soliciting to murder was complete at the moment the words of solicitation were uttered, regardless of whether a murder followed. The offender was therefore to be sentenced for that offence alone, not for the killing itself. The court was careful to note that Schreiber's conduct during and after the murder, and the offender's passiveness during it, were considered only as confirmation that her solicitation was genuine, not as independent bases for punishment.

On the question of the appropriate sentence, the court acknowledged the serious nature of the offence, which carries a maximum penalty of 25 years' imprisonment. It weighed the offender's deeply troubled upbringing, her limited educational and employment history, her ongoing mental health needs, and the time she had spent in segregated custody. These factors together justified a non-parole period of less than the standard three-quarters of the head sentence.

The court was not satisfied that the offender showed genuine contrition. Her guilty plea was treated as reflecting the strength of the evidence against her rather than remorse. Nonetheless, the court considered there were reasonable prospects of rehabilitation once the offender settled into the prison environment.

Orders Made

  • The offender was sentenced to six years' imprisonment, commencing 1 June 2001
  • A non-parole period of four years was fixed, expiring 31 May 2005
  • The offender was declared eligible for release on parole on 31 May 2005

Key Takeaways

  • Where the Crown accepts a guilty plea to soliciting to murder in full satisfaction of an indictment that also charged murder, it thereby abandons any entitlement to contend the offender should be sentenced on the basis of responsibility for the killing.
  • The offence of soliciting to murder is complete upon the uttering of the words of solicitation; the subsequent occurrence of the solicited killing does not automatically become an aggravating factor on sentence.
  • A court imposing sentence for soliciting to murder cannot treat the offender as criminally responsible for the killing unless responsibility has been proved, whether as principal or accessory.
  • Significant mitigating factors, including a history of serious childhood abuse and ongoing mental health difficulties, may justify fixing a non-parole period below the standard three-quarters of the head sentence, even where contrition is not established.
  • The Supreme Court noted that there is no established pattern of sentencing for soliciting to murder, given the relatively small number of recorded sentences for the offence.

Legislation and Cases Referenced

Legislation:
- No specific legislation was cited in the judgment text. The offence of soliciting to murder carries a maximum penalty of 25 years' imprisonment under New South Wales law.

Cases:
- No cases were cited in the judgment text provided.