R v Charlotte Karin Lindstrom

[2008] NSWSC 198

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Charlotte Karin LINDSTROM [2008] NSWSC 198
Hearing dates:	15 February 2008
Decision date:	07 March 2008
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	Sentenced to imprisonment for a non-parole period of 2 years commencing 26 May 2007 and expiring 25 May 2009, the balance of term being 1 year and 10 months expiring on 25 March 2011; eligible for release on 25 May 2009.
Catchwords:	CRIMINAL LAW – Sentence – solicit to murder – plea of guilty – exceptional case – level of discount for assistance to authorities – interference with administration of justice – lesser role than principal – psychological factors – 60 percent discount for plea and assistance – special circumstances – unreasonably disproportionate punishment.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	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
Category:	Sentence
Parties:	Regina (Crown) Charlotte Karin Lindstrom (Accused)
Representation:	Counsel: S Higgins (Crown) P Byrne SC (Accused)   Solicitors: Office of the Director of Public Prosecutions (Crown) Nyman Gibson Stewart Solicitors (Accused)
File Number(s):	SC 2007/5877
Publication restriction:	Non-publication order in relation to the names, or anything that would identify:1. The intended victims;2. The details of assistance given3. The place in the prison system in which the prisoner is accommodated.

JUDGMENT

1. HIS HONOUR: Sentencing is generally not an easy task. It invariably involves the balancing of competing goals: denunciation, retribution, deterrence, protection of society and rehabilitation of the offender. Yet there are times when the task takes on a Herculean proportion; when the circumstances are unique and it is necessary to apply the sentencing principles to an exception. This is such a case. The exception derives from the quantity and quality of assistance given by the offender and the circumstances of her incarceration and life thereafter.

2. Charlotte Karin Lindstrom adheres in this Court to a plea of guilty originally entered in the Local Court, on the basis of which plea she was committed. The charge to which the plea relates is a contravention of s 26 of the Crimes Act 1900 in that between 12 noon on 3 May 2007 and 10.40am on 26 May 2007 she, Charlotte Karin Lindstrom, did solicit an undercover police officer to murder MM.

3. Further, Ms Lindstrom requests, in a Form 1, that the Court take into account the further offence of solicit to murder DC. Each of the intended victims are proposed witnesses in a trial against Ms Lindstrom’s former boyfriend, Mr Steven Spaliviero, and the offence charged was committed at the same time and in precisely the same circumstances as the offence on the Form 1.

4. In short, Ms Lindstrom approached an undercover police officer to have him murder two witnesses. Such an offence has a significant aggravating feature, in that it involves the most fundamental interference with the administration of justice and the rule of law, and strikes at the very heart of democracy.

5. The offence carries a maximum sentence of imprisonment for 25 years and there is a prescribed standard non-parole period of 10 years: see Div 1A of the Crimes (Sentencing Procedure) Act 1999.

6. The maximum sentence is reserved for the worst conduct within the range that is covered by the offence, while the standard non-parole period is set for the hypothetical mid-range offender. Neither applies to Ms Lindstrom. Yet each is a guidepost by which the sentence to be imposed must be measured. It is necessary to set out:

• the circumstances of the offence;

• the role of Ms Lindstrom in the criminal enterprise;

• Ms Lindstrom’s relevant subjective features;

• the aggravating and mitigating factors relevant to the offence;

• the circumstances and effect of the plea of guilty and assistance to law enforcement agencies; before

• determining the sentence to be imposed.

The Offence

7. There are agreed facts as to the commission of the offence and the circumstances giving rise to it. I recite relevant extracts from that which has been agreed and I otherwise summarise the facts. I will substitute letters or synonyms for any person I consider it is unnecessary to identify publicly.

8. Mr Spaliviero and Ms Lindstrom met in October 2003, shortly after she arrived in the country. They commenced a personal relationship and started living together in mid-2004. Mr Spaliviero is 18 years older than Ms Lindstrom.

Between late 2003 and November 2005, Mr Spaliviero leased various premises in and around Sydney and manufactured amphetamine and ecstasy at those sites.

On 9 November 2005, a clandestine laboratory operated by Mr Spaliviero at Riverstone was discovered and searched by police, where approximately 45 kilos of ecstasy was located in various stages of manufacture.

During the period from mid-2004 to late 2005, Mr Spaliviero purchased items of laboratory equipment from various suppliers using several different names including “John Matthews”. A number of witnesses have taken part in photo identification procedures and have nominated a photograph of Mr Spaliviero as the person they knew as John Matthews. Two of the people who made this identification are MM and DC of FM.

On 26 October 2006, Mr Spaliviero was arrested and charged with knowingly taking part in the manufacture of a large commercial quantity of MDMA. He was refused bail and has been in custody since that time. After his arrest he was remanded in custody and Ms Lindstrom visited him regularly. A committal hearing was listed to commence on 25 June 2007. Both MM and DC were required as witnesses at that hearing.

In early March 2007, during a visit at the MRRC at Silverwater, Mr Spaliviero requested that Ms Lindstrom deliver two notes to Dennis (Basic) an acquaintance from Melbourne. He also asked her to set up an email account to communicate with Mr Basic. She was instructed not to read the notes herself, but that, if Dennis said “Yes” when he read the notes, she was to give him $40,000.00.

At that time she was not aware of the contents of the notes.

Shortly after, she met Dennis Basic in the Queen Victoria Building and did what Mr Spaliviero had requested. On that day she paid Mr Basic $40,000.00 and he requested a further $100,000.00.

On about 5 March 2007, during another gaol visit, Mr Spaliviero told Ms Lindstrom that the instructions he was giving to Dennis Basic was to rough up one of the witnesses to ensure that that person would not give evidence against him.

On 10 March, Mr Spaliviero had a further conversation with Ms Lindstrom during which he passed her a note and asked her to email the contents to Mr Basic.

9. On 12 March, Mr Spaliviero gave Ms Lindstrom a further note to be given to Mr Basic. He told her not to read the note. He also instructed her to give Mr Basic a further $60,000.00.

On 13 March, Ms Lindstrom met with Mr Basic in the Queen Victoria Building. They went to his hotel where she gave him the note from Mr Spaliviero and a further $60,000.00.

On 17 March 2007, Mr Spaliviero told Ms Lindstrom that the payments to Mr Basic were not to have a witness roughed up, but killed. She told him that she did not wish to be involved, that it was criminal and that she did not want to go to gaol.

On the same day Mr Basic flew from Melbourne and met Ms Lindstrom at the Queen Victoria Building, where she conveyed a message from Mr Spaliviero that Mr Basic should check his emails. One of the reasons for Mr Basic’s visit on this occasion was to attend court for a bail application by Mr Spaliviero, where it was expected that MM would give evidence. This was to allow Mr Basic to familiarise himself with MM’s appearance.

During the following weeks, Mr Spaliviero became concerned at the length of time Mr Basic was taking and he asked Ms Lindstrom to contact Mr Basic and find out what was happening. She rang Mr Basic and he assured her that the job would be done.

Shortly after that telephone call, in mid-April, she again visited Mr Spaliviero and he told her that he was arranging with another inmate, “[X]”, to have the witness killed. He told her that they would have to get the money back from Mr Basic and that he had decided that both the witnesses, Messrs MM and DC, would have to be killed.

10. On Ms Lindstrom’s next visit, Mr Spaliviero told her that he had organised, through a friend and fellow inmate, “[Y]” for someone named “Crazy Mick” to carry out the killings.

On 3 May 2007, Y, a fellow prisoner and close associate of Mr Spaliviero, contacted police through his solicitor. Police attended the MRRC and spoke to Y who informed them that Mr Spaliviero had approached him to organise a ‘hit-man’ to kill Messrs MM and DC. Mr Spaliviero had also informed Y that he had arranged for an associate in Victoria to carry out the murders, but that it was taking too long and that he was also negotiating with another prisoner to arrange the murders.

Authorisation was obtained by police to conduct a Controlled Operation and arrangements were made for an undercover officer with the pseudonym “Nick” to pose as the “hit-man”.

On 4 May 2007, police went to FM and advised MM and DC of the plan to have them murdered. Arrangements were made for them to be absent from the business and to leave their homes for a period until the matter was resolved.

During subsequent conversations, Mr Spaliviero informed Y that he wanted the murders to appear to be a robbery gone wrong and that it should take place as FM was closing for the day.

11. On 9 May 2007, police carrying out surveillance on the premises of FM observed a car stop outside the company. It had Victorian registration linked to Z, an associate of Mr Basic. At the same time a telephone call was made to FM by a person asking to speak to DC. When informed that DC was not available, the call was terminated. The mobile number from which this call was made is subscribed to A, a friend of Z, Basic’s associate, who also resides in Melbourne. The vehicle with Victorian registration then drove off.

On 20 May 2006, Mr Spaliviero requested that Y arrange for his man to do the job. He also told Y that the Melbourne people would be coming to Sydney the following day to meet with Ms Lindstrom, and bring money which they had previously been paid. He said that the person from Melbourne was to meet Ms Lindstrom on the steps of the Sydney Town Hall at about 2pm.

On 21 May 2007, Mr Spaliviero drew a map of FM and some details of Messrs MM and DC, which he gave to Y to give to the hit-man “Nick”. Later that day Y informed Mr Spaliviero that he had passed on the documents and that “Nick” was happy to do the job. The documents were retained by Y and handed to police on 23 May.

At approximately 2pm on 21 May 2007, Ms Lindstrom was seen meeting with Mr Basic who had flown up from Melbourne. Mr Basic came to the meeting carrying a white shopping bag which contained $70,000.00. They went to a Starbucks Café in George Street, Sydney and had coffee. Whilst there, Ms Lindstrom received two intercepted telephone calls from Mr Spaliviero in which coded conversations took place about sorting out the “drinks bill”. When Ms Lindstrom and Mr Basic left the café, Ms Lindstrom was carrying the white shopping bag. She received a further call from Mr Spaliviero during which she told him that she was “paying half the bill. I have got seventy and I will get the other thirty on Saturday.” It had previously been agreed that, when speaking on the telephone, they would refer to Mr Basic as Ms Lindstrom’s girlfriend from Melbourne.

During the evening of 21 May 2007, a telephone call between Dennis Basic and X was recorded, during which Mr Basic stated that “They are freaking out because there is so much missing”.

On 22 May, Mr Spaliviero again telephoned Ms Lindstrom and said, “You only got 70”. Lindstrom said, “She could not carry any more ….. she is coming on Saturday”.

12. During these telephone calls there was also discussion concerning the fact that Mr Basic had not brought with him the printouts and information obtained from researching FM.

Following Mr Basic's return to Melbourne on 21 May, a number of telephone calls were made between Mr Basic and Z, and Z and A, about obtaining further computer printouts.

On 24 May, Ms Lindstrom received a package from Mr Basic containing documents, including computer printouts which she placed in another envelope without reading.

Later on 24 May, Ms Lindstrom visited Mr Spaliviero and he told her that she would have to meet the “hit-man” at the Town Hall steps on Friday 25 May to hand over instructions.

13. Shortly after 10am on 25 May 2007, Ms Lindstrom met the undercover operative, “Nick”, at the Town Hall steps. They went to the courtyard area next to the Town Hall where she handed “Nick” an envelope containing a copy of a photograph of the staff of FM with MM and another member of staff circled and two further typed documents with information about the two intended victims. A discussion took place during which Ms Lindstrom was asked several times whether Steven (Spaliviero) wanted the two victims in a cemetery or a hospital. She confirmed that he wanted them in a cemetery. There was also discussion as to what “Nick” was to be paid for the job. They spoke about Dennis (Basic) from Melbourne, who was to have done the job, to the effect that he had brought back some of the money he had been paid, and that she was waiting for further money from Dennis. Arrangements were made to meet again the following day.

14. After leaving “Nick”, Ms Lindstrom spoke by telephone with Mr Spaliviero. She was upset and crying. She complained about having to discuss the matter with ‘Nick’ rather than just handing over the information, which was what she had expected to do.

15. At 10:30am on 26 May 2007, Ms Lindstrom met “Nick” at the Town Hall steps. They had a further discussion about when he would receive payment and he again confirmed that the victims were to be in a cemetery, not a hospital.

Ms Lindstrom was arrested as she left this meeting.

Ms Lindstrom’s Role

16. As can be seen from the foregoing, Ms Lindstrom’s involvement in the criminal undertaking to murder two witnesses was initially relatively innocent. She was unaware of the intention and plans of Mr Spaliviero. Her later involvement was firstly on the understanding that the intention was to “rough up” one of the witnesses, not, as later discovered, to murder him. It was only subsequently that Ms Lindstrom learnt of Mr Spaliviero’s true intentions. Nevertheless, thereafter, from 17 March 2007, Ms Lindstrom participated as outlined. It included meeting with the intended “hit-man”, paying money to him, and transmitting messages. Ms Lindstrom did not plan the crime. Nor did she instigate it. Ms Lindstrom was a cog in a criminal machine – usually a reluctant, but not wholly unwilling, participant. She was certainly not the principal offender.

17. The extent of Ms Lindstrom’s reluctance is to some degree exemplified in the exchange with Mr Spaliviero in two of the recorded telephone conversations that are in evidence (Exhibit 1) before the Court. In the conversations, during which Ms Lindstrom is crying, she protests that she does not want to be involved; she does not think it’s funny; and she does not want to see the “hit-men”.

18. Moreover, the degree to which Mr Spaliviero is callously manipulating Ms Lindstrom’s misplaced loyalty and devotion is manifest from the recordings. It is also clear that the offences would have been arranged, and in part were arranged, without Ms Lindstrom’s involvement. It is noteworthy that Ms Lindstrom would have gained no benefit from the successful fulfilment of the offence. The benefit would have been derived by Mr Spaliviero.

Ms Lindstrom’s Subjective Features

19. Ms Lindstrom was 22 at the time of the conduct that gave rise to the offence charged (and the offence on the Form 1). She was born in Sweden where her family, both parents and a younger brother, still live. Both her parents are business people working together in a family business. They are described as successful and financially comfortable and are a close family unit.

20. She suffered (and still suffers) from Anorexia Nervosa, having developed it shortly after one of her best friends died at the age of 14. The friend died shortly after the death of her maternal grandfather, with whom she was very close. The trauma of the death of her grandfather and friend was heightened, in her mind, because she was studying as an exchange student away from home at the time and could not participate in the grieving process in the usual manner.

21. Otherwise her family life was good. There is no history of family abuse. Neither parent is a heavy drinker and she enjoys a close relationship with both parents. During her time in Australia, she visited Sweden twice a year to see them and, since her problems with law enforcement agencies, her parents have travelled to Australia to support her on a few occasions. Her father was in attendance during the sentencing hearing and has remained in Australia for the period until, at least, today.

22. She was diagnosed with Anorexia shortly after the death of her friend, referred to above. While she was diagnosed early and was treated by the attendance at a clinic over a six month period, her condition progressed and she became amenorrhoeac between the age of 16 and 19. As a consequence her academic performance suffered.

23. At the age of 17, she travelled with friends of her family on a sailing boat through the South Pacific, travelled to Thailand with her parents and her then boyfriend, and she and her boyfriend planned a six month working holiday in Sydney. She extended her stay. It was during that stay that she broke up with her then boyfriend and met Mr Spaliviero. That was November 2003.

24. She worked as a waitress in a café and did promotion work. It was in this context that she met Mr Spaliviero. Mr Spaliviero had a partner at the time. A relationship developed between Ms Lindstrom and Mr Spaliviero in mid 2004.

25. To her psychologist, Mr Borenstein, she described her then emotional state as:

“It was different, exciting, he made me feel important and special, he fascinated me, he knew so much about everything, and he was manly, I felt really safe with him.”

26. The psychologist opines that Ms Lindstrom became quickly enamoured and was deliberately seeking a mature partner in contrast to her previous relationship.

27. Ms Lindstrom’s parents met Mr Spaliviero and made it clear to her that they did not approve of him but left the decision as to the relationship to her.

28. Her weight loss issues continued and by Christmas of 2004/2005 she weighed 38kg. The psychologist makes clear that this was a time of increasing tension and problems in her relationship with Mr Spaliviero, whether or not Ms Lindstrom realised it.

29. Prior to meeting Mr Spaliviero she was not involved in any criminal activity. She has no prior convictions either here or in Sweden (or indeed anywhere else). Through her relationship with Mr Spaliviero, Ms Lindstrom was introduced to illicit drugs and she began to use cocaine and occasionally ecstasy.

30. The psychologist records that during the period of the criminal activity, the subject of this charge and the offence disclosed in the Form 1, Ms Lindstrom was taking a number of tablets due to a state of depression and anxiety. At that stage she was consuming one Valium tablet per day, Stilnox at night and one to one-and-a-half tablets per day of Xanax.

31. The evidence before the Court is that:

“Benzodiazepines are known to impact negatively on a person’s ability to make rational judgments and decisions, more so when the recipient is at dangerously low levels of weight impacting negatively on how the drug is metabolised in the body.”

32. The psychologist opines:

“At the time of the offence she satisfied the diagnostic criteria for Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM IV 309.28). Her mood was markedly depressed and she was highly anxious and agitated, hence the need to allay her symptoms by using Valium, Stilnox and Xanax….

She became quickly involved with Mr Spaliviero and over time came to be told of his criminal background. She idealised the relationship, and operated from both a regressed and naive position….

By definition, those who suffer with Anorexia Nervosa are, in effect, psychologically stuck in a regressed, child-like position and some theorise those who suffer with Anorexia Nervosa do not want to grow up. It can be said, in Ms Lindstrom’s case, her Anorexia Nervosa is evidence of the fact she lacks emotional development even though she is able to offer intellectual insight. At some level she understands Anorexia Nervosa has been her attempt to take control of emotional distress and upset, and this in itself is evidence Ms Lindstrom lacks necessary psychological strategies to cope with emotions. She remains prone to panic. She remains actively anorexic….

Ms Lindstrom requires ongoing psychological care to assist her into the future….

To her credit she understands that she has been far too loyal and trusting of others up until now, which represents an important insight and opens the door for future psychological work.

Finally, I am of the opinion Ms Lindstrom suffers a known mental disorder, namely Anorexia Nervosa as well as an Adjustment Disorder with Mixed Anxiety and a Depressed Mood as was the case when the offence occurred. I am of the opinion her psychological state contributed directly to the behaviour for which she is charged.”

33. As is made clear from her psychologist’s report, Ms Lindstrom is neither delusional, nor does she hear voices. She has felt paranoid but the psychiatrist opines that this is probably justified under the circumstances. I agree.

34. She has continuing feelings of remorse and worry about the two witnesses who were the intended victims of her crime. She also has nightmares about the threats to her life from Mr Spaliviero. The psychiatrist, Associate Professor Carolyn Quadrio, confirms much of what has been recited above from the psychologist.

“Ms Lindstrom is suffering from an Adjustment Disorder with Depression and Anxiety. This is a condition that develops under severe stress…. At times she has symptoms of Post Traumatic Stress Disorder with hypervigilance, preoccupation and feelings of being hunted…. There is considerable overlap between the two.”

35. She also suffers from chronic Anorexia Nervosa and is currently clinically seriously underweight. The psychiatrist says:

“It is because of these features of her chronic anorectic adjustment that Ms Lindstrom was highly vulnerable to her relationship to a man who seemed powerful and able to control and to whose control she capitulated with little resistance….

Ms Lindstrom presents as an immature young woman who, like many anorectics, struggles to move beyond an adolescent adjustment; she is clearly vulnerable and impressionable….

She has never exhibited any antisocial behaviour before and even in this context her behaviour was driven more by fear and manipulation rather than by personal gain.

Ms Lindstrom feels very remorseful and ashamed about what she has done. She feels ashamed that she was deceived and manipulated in the way that she was….

In my opinion the long-term outlook for Ms Lindstrom in terms of any recurrence of criminal behaviour is excellent. She has no antisocial character traits and no elements of psychopathy. It is extremely unlikely that she would become involved in any criminal activities at any time in the future….

Ms Lindstrom requires ongoing counselling for Anorexia and the associated personality vulnerabilities so that she may develop more insight into how these vulnerabilities positioned her for such manipulation.”

36. The Court also has a letter from a psychotherapist in Sweden who confirms the ongoing nature of the psychological problems suffered by Ms Lindstrom.

37. Ms Lindstrom’s demeanour and evidence confirms all that has been said of her by the expert witnesses. She presents as emaciated, chronologically young and emotionally immature. I accept that her psychological and emotional conditions contributed significantly to her participation in the offences in question and allowed her to be manipulated in the manner suggested.

Aggravating and Mitigating Factors Relevant to the Offence

38. A number of the factors aggravating and mitigating the circumstances of the commission of this offence (and the offence on the Form 1) have already been outlined. The offence itself did not involve actual or threatened use of violence, but the conclusion of the activity, if successful, would have. However that factor, together with the probable use of a weapon in the proposed murder, are features of the crime itself and cannot be used to aggravate the offence.

39. Outside of the elements that are necessary for the commission of the crime itself, it is clear that the offence did not involve gratuitous cruelty, namely, cruelty above and beyond that which was part of the commission of any violent crime. Of course, in this instance, Ms Lindstrom is not charged with murder, but with the lesser crime of soliciting a murder. There were, of course, no murders occasioned by the offence in question.

40. The offence was part of a planned and organised criminal activity. Mr Spaliviero organised the offences in question and part of the planning and organisation of those offences was the role played by Ms Lindstrom in facilitating the intended murders. Moreover I also take into account that the intended murders were part of a larger organised criminal activity, namely the importation and manufacture of drugs. These murders were attempts to interfere with the administration of justice and escape retribution for other organised criminal activity.

41. As already outlined, Ms Lindstrom did not stand to benefit herself, either financially or otherwise.

42. Thanks to the intervention of the law enforcement agencies, the plan to murder two witnesses was thwarted. Nevertheless there is emotional harm that has been caused to the two intended victims who are aware of the threat to them.

43. Mostly however I take into account, in relation to the commission of these offences by Ms Lindstrom, the interference with the due administration of justice as an aggravating feature that would take the overall criminal activity beyond the mid-range in ordinary circumstances.

44. Against that, as I have sought to make clear, there is no doubt that Ms Lindstrom was acting under a form of duress; was being completely manipulated; and that duress and manipulation was facilitated by the psychological and emotional conditions suffered by Ms Lindstrom and which were significant in the decision by her to participate in this criminal activity.

45. Other than the offences now before the Court, as already stated, the offender has no criminal record either here or overseas and is a person of good character.

46. I accept the evidence before me, and independently come to the conclusion, that Ms Lindstrom is unlikely to re-offend. Her prospect of rehabilitation, indeed her current rehabilitation, shows every sign of being totally successful. I take into account Ms Lindstrom’s chronological age and her immaturity. She is much less mature than her chronological age would otherwise suggest.

47. I also consider that, as disclosed in the psychiatric and psychological reports, Ms Lindstrom was not fully aware of the consequences of her actions at the time of the offences. Her psychological conditions and immaturity tended to cause her to romanticise the relationship with Mr Spaliviero and disregard the consequences, in reality, of her actions.

48. She has shown significant remorse for the damage that she has caused already to the two intended victims and, even more so, the damage that could have been effected, if that which she had done, had been successfully concluded. She has accepted full responsibility for her actions. The remorse has been shown not only in the evidence that has been given by her in these proceedings and the statements to the psychologist and psychiatrist, but also in her actions both in the plea of guilty and the level of assistance that has been offered to the law enforcement agencies.

Circumstances and Effect of Plea of Guilty and Assistance

49. I have not as yet referred to either the plea of guilty or the level of assistance offered by Ms Lindstrom.

The evidence of the assistance is in a series of affidavits and other material that are not available for public scrutiny. It would render otiose those orders for confidentiality, to repeat in this judgment the details of the assistance. Nevertheless some summary must be given.

50. Before dealing with the question of assistance, it is necessary to deal with the plea of guilty. The Crimes (Sentencing Procedure) Act requires the Court to take into account that Ms Lindstrom has pleaded guilty to the offence and the timing of that plea. The plea was entered shortly after the service of the prosecution brief and before committal proceedings in the Local Court. There had been some negotiation between the Crown and Ms Lindstrom’s representatives in relation to the charge to be preferred and the plea of guilty was entered as soon as reasonably practicable after the finalisation of the charge. I consider that a discount at the highest level is appropriate. Discount for a plea of guilty is for the utilitarian value of the plea to the criminal justice system and is generally assessed in the range of 10 to 25 percent discount on sentence. The primary considerations used to determine that this plea should be given a discount in the highest range are the timing of the plea and the saving of costs to the public: R v Thomson & Houlton [2000] CCA 309; (2000) 49 NSWLR 383 at 419. While it is important for the process of discount to be transparent, because I intend to allow a significant discount for the level of assistance to authorities, I do not separately identify a discount for the plea of guilty and will include that in the ultimate discount to be provided.

51. Assistance to authorities in the prosecution of offences is a public benefit and a public duty. Nevertheless, leniency is extended to criminals, in the sentencing process, for assistance to authorities. It is not an uncommon practice. That leniency takes into account a number of factors summarised by the High Court in York v R [2005] HCA 60; (2005) 79 ALJR 1919:

“[3]   It is common sentencing practice to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities, and, in so doing, to take account of any threat to the offender’s safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released”: York v R, supra, per Gleeson CJ.

52. His Honour Chief Justice Gleeson referred, after the passage cited immediately above, to two judgments of the Court of Criminal Appeal that discuss the relevant principles. In one of them, R v Gallagher (1991) 23 NSWLR 220, Gleeson CJ observed:

“Other considerations that enter into the matter include the remorse or contrition which may be demonstrated in a given case by cooperation with the authorities, and the more difficult time which an informer is likely to have during the period of incarceration as a result of having cooperated. Those last mentioned matters may, depending upon the circumstances, be very difficult to separate from other considerations which might arise quite apart from the matter of assistance to the authorities. In this case, for example, the appellant was entitled to receive, and received, credit for pleading guilty, and for the contrition which that plea of guilty reflected. It was also said to be to his credit that he had good prospects of rehabilitation. It seems hardly likely that these were subjective matters which were entirely separate from the matter of his assistance to the authorities. It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of interrelated considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical”: R v Gallagher, supra, at 227-228.

53. In R v Pang [1999] NSWCCA 4; (1999) 105 A Crim R 474, Wood CJ at CL, with whom Meagher JA and Barr J agreed, observed that “there is no fixed tariff for the reduction that should be given for assistance, and so far no guideline judgment has been delivered in this area. However, the discount customarily given in this State for assistance, has ranged between 20 percent and 50 percent of the sentence that would otherwise have been imposed.”

54. In R v AMT [2005] NSWCCA 151 Grove J, with whom Wood CJ at CL and Hoeben J agreed, observed that, even though the highest range is usually associated with a person who is prepared to give evidence, persons who do not give evidence are entitled to discounts at the highest range. See also R v M [2005] NSWCCA 224, per Buddin J with whom James J and I agreed.

55. The matters associated with the level of discount were discussed by the Court of Criminal Appeal in SZ v R [2007] NSWCCA 19 in which the Court made it clear that a combined discount for pleas of guilty and assistance should not normally exceed 50 percent and that discounts exceeding 50 percent should be reserved for exceptional cases.

56. In SZ v R, Buddin J, with whom Simpson and Howie JJ agreed, said:

“[52]    I acknowledge, as did Latham J in Sukkar (supra), that there will be cases in which a combined or composite discount of more than 50% is called for. There may well be a case in which the assistance proffered is of a quite extraordinary kind. Alternatively there may be a case in which the offender is entitled to an additional discount, in accordance with the principles enunciated in R v Ellis (1986) 6 NSWLR 603, on account of having disclosed information which was otherwise unknown to the authorities. Indeed, composite discounts in excess of 50% have been allowed on several occasions when this Court has proceeded to re-sentence following a successful appeal by an offender…

[53]   However, in light of the authorities to which I have referred and particularly given the statutory mandate contained in s 23(3) of the Act, it is my opinion that a combined discount exceeding 50% should be reserved for an exceptional case. Counsel for the applicant went so far as to suggest that a combined discount of 75%, comprising a discount of 25% for the plea of guilty to which would be added a further 50% for assistance to authorities, may be available in an appropriate case. In view of the matters to which I have referred, I regard such a submission as being simply untenable. Apart from any other consideration, the aggregation of discrete discounts is at odds with the observations of Gleeson CJ in Gallagher (supra).”

57. In the same judgment in separate comments agreeing with Buddin J, Howie J said:

“[7]   Counsel for the applicant argued that a proper application of both the guideline in Thomson and Houlton as to the effect of the utilitarian value of a plea of guilty and the acknowledged range of the discount available for assistance meant that it was legitimate in an appropriate case to discount a sentence by up to 75 per cent. It was argued that, as the discount for the plea and the discount for assistance reflect two different policies and did not overlap, because the utilitarian value of the plea had nothing to do with contrition, the court should give them both their full effect. But the argument simply overlooks the fact that it is impossible to see how a sentence that is only 25 per cent of what would otherwise be appropriate could not be ‘unreasonably disproportionate to the nature and circumstances of the offence’.

[8]   I accept that what is ‘unreasonably disproportionate’ is not simply determined by the objective facts of the offence and has to take into account matters such as the threat posed to the offender by reason of the assistance given and the nature and extent of the assistance: R v C (1994) 75 A Crim R 309. But this does not relieve the judge from the primary task of imposing a sentence that reflects the objective circumstances of the offence: R v WHS (NSWCCA, unreported, 27 March 1995). The decision in York v R does not suggest otherwise.”

58. As earlier stated, to repeat in a public document that which is otherwise ordered to be confidential, would defeat the purpose of the original order. However, it is necessary to deal, in broad, with the issues relating to assistance.

59. The assistance given, including the undertaking to give evidence, is assistance that goes beyond this offence and beyond Mr Spaliviero. It has been made in circumstances where Ms Lindstrom knows full well that Mr Spaliviero is likely to organise, or seek to organise, her murder. During the course of her incarceration, she has received corroborated death threats which required the prison authorities to move her. Her current location is also subject to a non-disclosure order.

60. During the course of the proceedings affidavits and evidence have been adduced from the NSW Crime Commission, the Australian Federal Police and the NSW Police. The officer of the AFP flew from Melbourne specifically to give evidence outlining the assistance provided already by Ms Lindstrom and to be provided in the future. The affidavit is of significant length. As is the affidavit of the officer of the NSW Police. Detective Senior Constable Hancock is an officer attached to the State Crime Command Drug Squad and was the officer in charge of the investigation which resulted in the charging and arrest of Mr Spaliviero on drug offences. Her affidavit gives a detailed summary of the extent of the information that has been provided by Ms Lindstrom and the likely use to which that information will be put. Detective Senior Constable Hancock made clear that she had never seen or heard of anybody giving information that is as extensive and as useful as this prisoner has given.

61. The process of assistance itself took a long time during which Ms Lindstrom was completely cooperative. She answered all questions apparently to the best of her ability. She never refused to answer any questions asked of her and the NSW Police are convinced that she has given all the information that she possibly can about the matters they are investigating. They are also satisfied that the information that she has given is true and correct and certainly accords with the information that has become or was available to the police independently.

62. The statement in answer to a question in cross-examination from Mr Byrne SC, representing Ms Lindstrom, that the Detective Senior Constable had never seen or heard of anybody giving information as extensive or as useful is a proper summary and conclusion that may be drawn from the affidavits that are in evidence. Of itself, such a superlative puts this assistance in the exceptional category.

63. However there are other factors which require Ms Lindstrom’s assistance to be viewed as exceptional, if not unique. I have referred already to the propensity of Mr Spaliviero and the danger in which Ms Lindstrom is placing herself. I have also referred to the fact that the prison authorities have already moved Ms Lindstrom because of threats to her made in the prison system. She is currently in solitary confinement. She is in solitary confinement in a male prison. She has no interaction with any other prisoner. Because other prisoners are aware of her presence and that she is female, she is subject to comments from other prisoners during the day. Without any disrespect to prison authorities, she is confined to the company of prison officers, some male and some female. While she has some visitors, she is denied regular contact with her family, with whom she is close. Weather permitting, she is allowed occasional time in a yard, slightly bigger than this court room, in which she can take in some sun.

58. Were this regime imposed for reasons other than her own safety, it would amount possibly to a form of torture. Moreover the persons against whom she has given information, and against whom she is to give evidence, are persons who are very senior in significant criminal activity and have shown a propensity to seek to have witnesses murdered. It has been made clear that after her incarceration, her time will be spent in a witness protection program, in which her liberty will always be controlled (whether or not she is on parole). The rest of her life will be spent looking over her shoulder.

59. The major factor in determining a sentence for Ms Lindstrom must be the issue of denunciation and general deterrence. No special provision needs be made for specific deterrence. No person familiar with the circumstances that Ms Lindstrom will endure for the remainder of her life could see a prison sentence, no matter how short, as insufficient deterrence for the crimes she has committed.

60. Nevertheless I am constrained by principle and by the necessity that the sentence I impose cannot be so low as to be unreasonably disproportionate punishment for a part in a criminal enterprise that, in its entirety (that is including the culpability of the entire plan of Mr Spaliviero), was well above mid-range in culpability. I am, however, entitled, at least, to provide a discount of 60 percent for the combined effect of the plea of guilty and the assistance of this kind: an assistance which is rare, exceptional, and perhaps unique, with consequences on Ms Lindstrom which are extreme.

Determining an Appropriate Sentence

67. I must then determine an appropriate sentence. Sentencing is not a mathematical or arithmetic exercise. The statistics from the Judicial Commission, while helpful, are less helpful than usual simply because there have been so few convictions recorded since the implementation of the standard non-parole period.

68. While there is no doctrine of comparability between different offenders who have committed different offences, the most obvious comparison is the sentence imposed and considered by the Court of Criminal Appeal in Bou-Antoun v R [2008] NSWCCA 1. In that case the Court of Criminal Appeal considered an appeal by the offender against the level of sentence imposed by the District Court. It was for solicitation to murder. Like this case, it involved an attempt to murder a witness in proceedings. The District Court imposed a sentence of imprisonment consisting of a non-parole period of 10 years and a balance of term of 4 years. There are features which distinguish the offence which was considered by the Court of Criminal Appeal in Bou-Antoun and the current matter. In Bou-Antoun, the offender was the principal in the offence, rather than one who played a subsidiary role like Ms Lindstrom. Further, in Bou-Antoun, the person who was sought to be murdered, while a witness, was also the victim of earlier acts of sexual assault. Lastly, and most importantly, the offence in question in that case was intended to cause gratuitous cruelty, namely, the torture of the victim prior to her death.

69. Bearing in mind the importance of denunciation in a crime that is aimed at the administration of justice, it is important to start from a proposition that the totality of criminal activity (not necessarily confined to the conduct of Ms Lindstrom) is beyond the mid-range of criminal culpability associated with soliciting to murder. However, bearing in mind the lesser role of Ms Lindstrom and the extremely strong subjective factors associated with her psychiatric and psychological subornation, I fix a starting point for a head sentence for this charge (taking account of the offence on the Form 1) of 9 ½ years. I allow a discount of 60 percent for the plea of guilty and the assistance to authorities.

70. The circumstances of Ms Lindstrom’s incarceration and her post-incarceration existence, together with her psychiatric state, allow me to determine that there are special circumstances that allow a departure from the statutory ratio between non-parole and parole period. Those special circumstances would lead me to the view that the ratio between non-parole and parole period should be one-to-one. I am not prepared, however, to impose a sentence that would involve a non-parole period of less than 2 years.

71. Notwithstanding that I take the view that the determination of what is unreasonably disproportionate must take account of matters such as the threat posed to Ms Lindstrom by reason of the assistance given and the nature and extent of the assistance, I would consider that a non-parole of less than 2 years would be unreasonably disproportionate to the offence in question. As a consequence I impose the following sentence.

72. Charlotte Karin Lindstrom, you are convicted of an offence under section 26 of the Crimes Act 1900 in that between 12 noon on 3 May 2007 and 10.40am on 26 May 2007 you did solicit an undercover police officer to murder MM.

For that offence, and taking into account the offence on the Form 1, I sentence you to imprisonment for a non-parole period of 2 years commencing 26 May 2007 and expiring 25 May 2009, the balance of term being 1 year and 10 months expiring on 25 March 2011.

You are eligible for release on 25 May 2009.

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Amendments

20 April 2020 - Publication restriction removed – judgment published

Decision last updated: 20 April 2020