Citation: R v Charlotte Karin Lindstrom [2008] NSWSC 198
Court: Supreme Court of New South Wales
Date: 7 March 2008
Judge(s): Rothman J
Background
The offender pleaded guilty to soliciting an undercover police officer to murder two witnesses who were due to give evidence at the committal hearing of her former partner, who had been charged with manufacturing large commercial quantities of MDMA. The offender had been drawn into a scheme orchestrated by her partner from prison, initially without full knowledge of its lethal purpose, but eventually played an active role in communicating with the proposed hitman.
Police conducted a controlled operation using an undercover officer posing as the hitman. Between early May and late May 2007, the offender met with that officer and solicited the murders. A second solicitation, relating to the second witness, was taken into account on a Form 1 (a procedure under NSW law allowing related offences to be considered at sentencing without a separate conviction).
The offence carried a maximum sentence of 25 years and a standard non-parole period of 10 years. Rothman J described the case as exceptional, given both the extraordinary quantity and quality of assistance the offender provided to authorities and the particular circumstances of her incarceration.
Legal Issues
- What was the appropriate starting point for the head sentence, given the offender's lesser role than the principal and significant psychological vulnerability?
- What discount, if any, should be applied for the guilty plea and assistance to law enforcement authorities?
- Whether special circumstances existed to justify departing from the standard statutory ratio between the non-parole period and the balance of term?
- What sentence would avoid being "unreasonably disproportionate" to the offence in the specific circumstances?
Decision
Rothman J accepted that the totality of the criminal enterprise exceeded the mid-range of culpability for soliciting murder, given that it targeted witnesses and directly undermined the administration of justice. However, the offender's role was significantly lesser than that of the principal. The court also accepted substantial evidence of psychological and psychiatric subornation, meaning the offender's will had been materially compromised through her relationship with the principal. Those factors warranted a starting point below the standard non-parole period benchmark, with Rothman J fixing the head sentence at 9.5 years.
His Honour then applied a 60% discount for the combined effect of the guilty plea and the offender's assistance to authorities. The judgment described this as an exceptional case, noting that the quantity and quality of cooperation was extraordinary. A 60% combined discount is at the very upper limits of what the case law contemplates, reflecting the court's assessment that the assistance was of the highest order.
Rothman J found that special circumstances existed to justify departing from the standard statutory ratio (under which the non-parole period would ordinarily be at least three-quarters of the total sentence). The circumstances included the nature of the offender's incarceration, her post-release situation, and her psychiatric condition. The court considered that a one-to-one ratio between non-parole and balance of term was appropriate, but also held that a non-parole period below two years would be unreasonably disproportionate to the gravity of the offence.
Orders Made
- The offender was convicted of soliciting murder, contrary to s 26 of the Crimes Act 1900, in relation to the solicitation of an undercover police officer between 3 May and 26 May 2007, with the second solicitation offence taken into account on a Form 1.
- Sentenced to imprisonment with a non-parole period of 2 years, commencing 26 May 2007 and expiring 25 May 2009.
- Balance of term of 1 year and 10 months, expiring 25 March 2011.
- Eligible for release on 25 May 2009.
Key Takeaways
- A combined discount of 60% for a guilty plea and assistance to authorities is available in truly exceptional cases, but the judgment confirms this sits at the extreme upper end of the permissible range and requires both an outstanding quality of assistance and appropriate consideration of all relevant sentencing principles.
- Where an offender has a significantly lesser role than the principal, and there is credible evidence of psychological subornation, those factors can substantially reduce the starting point for a head sentence even in a serious offence targeting the administration of justice.
- Special circumstances justifying a departure from the standard non-parole/parole ratio can arise from a combination of factors, including the particular hardship of incarceration, post-release risks arising from assistance given, and established psychiatric conditions.
- Under the "unreasonably disproportionate" principle, a court retains a floor below which it will not reduce a non-parole period, regardless of how exceptional the discount factors may be, in order to maintain a proportionate relationship between sentence and offence seriousness.
- Soliciting murder to prevent witnesses from giving evidence is treated as an aggravated category of the offence, as it strikes directly at the administration of justice, even where the offender played a subordinate role to the person who planned and directed the scheme.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 26 (solicit to murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A (standard non-parole periods)
Cases
- Bou-Antoun v R [2008] NSWCCA 1
- R v AMT [2005] NSWCCA 151
- R v Gallagher (1991) 23 NSWLR 220
- R v M [2005] NSWCCA 224
- R v Pang [1999] NSWCCA 4; (1999) 105 A Crim R 474
- R v Thomson & Houlton [2000] CCA 309; (2000) 49 NSWLR 383
- SZ v R [2007] NSWCCA 19
- York v R [2005] HCA 60; (2005) 79 ALJR 1919