R v Schreiber

[2001] NSWSC 1184

CITATION:	R v Schreiber [2001] NSWSC 1184
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 70089/2000
HEARING DATE(S):	11/05/2001; 24/08/2001
JUDGMENT DATE:	19 December 2001
PARTIES :	Regina Keith Andrew Schreiber
JUDGMENT OF:	Hidden J at 1

COUNSEL :	P Conlon SC (Crown) P Zahra SC (offender)
SOLICITORS:	Solicitor for Public Prosecutions Legal Aid Commission
CATCHWORDS:	CRIMINAL LAW - Sentence - murder - plea of guilty
LEGISLATION CITED:	Mental Health Act
CASES CITED:	Previtera (1997) 94 ACrim R 76 R v Thomson; R v Houlton (2000) 49 NSWLR 383
DECISION:	Sentenced to sixteen years with a non-parole period of twelve years.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL JURISDICTION

70089/2000
HIDDEN J
Wednesday 19 December 2001

Regina v Keith Andrew Schreiber

Remarks on Sentence

: The offender, Keith Andrew Schreiber, has pleaded guilty to the murder of Jack Van Krevel at his home in Albion Park in the early hours of Friday, 18 August 2000.

2 The offender was a longstanding friend of the deceased’s son, Mark Van Krevel, who is also known as Mark Valera. In July and August 2000 Valera was tried upon two counts of murder and found guilty. In that trial the deceased had given evidence in which he admitted that he had been physically violent to Valera, although he denied any sexual abuse.

3 The deceased was living at the house at Albion Park with his daughter, Belinda Van Krevel, and her two year-old daughter, Tia. The offender was friendly with Ms Van Krevel. Evidence as to whether their relationship was a sexual one is conflicting but I do not find it necessary to resolve that matter. What is clear is that he was strongly attached to her. Prior to the killing, Ms Van Krevel had told the offender that the deceased had interfered with her daughter sexually. There is evidence that she solicited the offender to kill the deceased, and she has since been charged with involvement in the murder.

4 The offender told Dr Bruce Westmore, psychiatrist, that about two weeks before the killing, Ms Van Krevel had suggested to him “in a roundabout way” that he should kill the deceased. She asked him “hypothetically” if he would do it but he said that he would not. To what extent, if at all, Ms Van Krevel influenced his crime is a matter to which I shall return.

5 The offender himself had been the victim of violence and sexual abuse at the hands of a teacher when he was in primary school. He told Dr Westmore that he had been touched sexually by the deceased from time to time but, as he described these incidents, they appear to have been minor.

6 At the relevant time the offender was subject to a community service order which had been imposed following his conviction in the Wollongong District Court in September 1999 of a charge of armed robbery. For that purpose, he was under the supervision of Ms Rhonda Freestone, a Probation and Parole officer. In the early part of the year 2000, Ms Freestone arranged for him to attend courses in stress and anger management. However, from late July 2000 she noted a deterioration in his mood and presentation. Mark Valera’s trial was in progress at the time, and the offender himself was called as a witness in the Crown case. It was clear that he was finding the trial distressing and that, as Ms Freestone expressed it, he was “very angry at life in general”. His mood fluctuated between anger and depression. He expressed suicidal and homicidal thoughts, although the latter were not directed at anyone in particular.

7 When she first observed this deterioration, Ms Freestone asked the offender if he wanted to be referred to a counsellor. He said that he did not, that he had to deal with things himself and that he would not take any charity. About a week later Ms Freestone was sufficiently concerned to refer him to a psychologist, but he did not keep the appointment. By 14 August 2000 there had been a further significant deterioration. He told Ms Freestone that he had not eaten and had slept badly for several days. By this time Mark Valera had been found guilty and was in custody. The offender had been sharing premises with him and, as a result, he was homeless.

8 By 15 August, only a matter of days before the killing, his presentation was such that Ms Freestone contacted the Mental Health Mobile Treatment Team of the Illawarra Area Heath Service. Among other things, he spoke of his belief that little Tia was being sexually abused in her home and expressed concern for her welfare. Ms Freestone said that he spoke of this “as if it was a very personal hurt”. The Mental Health Team had him assessed by a staff psychiatrist at Wollongong Hospital, who found no evidence of mental illness such as to justify his being detained under the Mental Health Act. The doctor concluded that he was “a long term risk of harm to self and others”, but he did not see him as an “immediate risk”.

9 It is against this background that the terrible events of the morning of 18 August might be understood. The offender went to the deceased’s home and obtained a tomahawk which was hanging up on the outside of the garage. He entered the house by climbing through an unlocked window. He went to the kitchen and obtained a large knife. He then went to a bedroom where the deceased was sleeping, naked. The deceased woke and he struck him on the head with the tomahawk, holding it with both hands. As the deceased rolled to the centre of the bed, calling out in protest, the offender continued to strike him with the tomahawk. He tried to cut his neck with the knife and to stab him in the heart but, as the bedroom light was off, he was finding it difficult to see.

10 The deceased rolled off the bed. The offender ran to the lounge room, where he seized a brass-handled poker from near the fireplace. He returned to the bedroom and turned on the light. The deceased was kneeling at the side of the bed and called to him by name. The offender said, “This is from Mark, fucking paedophile bastard. You’ll never molest another kid again.” He then struck the deceased in the neck, first with the poker then several times with the tomahawk until he heard the neck crack. He took up the knife and cut the deceased’s neck to expel air from his airways. He also cut the deceased’s right leg, down the length of his spine, on the cheeks of his buttocks and around the anus. Although

his intention by doing so was to inflict pain, the post-mortem findings indicate that the deceased was dead by then.

11 The forensic pathologist who conducted the post-mortem detected twenty-five chop wounds to the head and neck, with the neck partly severed. There were also numerous stab wounds and lacerations on the torso.

12 The offender was arrested that afternoon in the Albion Park area. Initially, he gave a false name and claimed to have no knowledge of the murder. Later, however, he admitted the killing in a recorded interview at Port Kembla police station and participated in a video taped “runaround”. It is from his detailed admissions that the narrative of the killing in these reasons, drawn from the Crown’s comprehensive statement of facts, is derived.

13 The offender was twenty-one years old at the time of the murder and is now twenty-two. Apart from the armed robbery to which I have referred, the only other entry on his criminal record is a matter which was dealt with without a conviction being recorded and which can be disregarded. I have no details of the robbery, apart from the fact that it was committed in the company of Mark Valera, but the outcome suggests that it was not a particularly serious offence of its class.

14 He was brought up in Wollongong, and it seems that his family life was satisfactory until his parents divorced when he was twelve years old. He was greatly distressed by this development, for which, for no rational reason, he felt responsible. Included in a body of evidence from relatives about his background is a helpful and perceptive statement by his aunt, Ms Laveana McNamara. She wrote that his self-esteem, which had been low from a very young age, deteriorated. Both parents re-married, but he was not welcomed by either of their new partners.

15 In these circumstances, the offender became increasingly dependant upon the friendship of Mark Valera, which led to his relationship with Belinda Van Krevel. It is clear from her statement that Ms McNamara considers both of them to have been a malign influence upon him. For a period the offender was living with his sister, Annette and her partner and was attempting to get his life in order whilst he was performing community service. However, they also disapproved of his association with Mark and Belinda and were concerned about what they observed to be his dependant relationship with both of them.

16 Some further light is thrown upon the offender’s crime by this background. It is clear that at the time of the killing he was in a disturbed mental state, engendered in large part by his preoccupation with the abuse which he believed the deceased had visited upon Mark Valera and the child, Tia. He himself, as a child, had been the victim of physical and sexual abuse by a teacher. I have referred to his account to Dr Westmore of inappropriate sexual contact by the deceased, but that appears to be of little significance for present purposes.

17 To what extent the killing was the result of the urging of Ms Van Krevel is difficult to determine. I must consider that matter upon the limited material before me, bearing in mind that criminal proceedings against her are now in train. Anything I say about it is for the purpose only of assessing the offender’s criminality and, obviously, could not pre-empt the finding of a court dealing with her. In evidence, Dr Westmore expressed the view that, when the offender said that she had raised the matter of killing the deceased with him “hypothetically”, he was being “less than complete” in his account of her involvement. It is sufficient to say that I share that view. Whatever her particular role might have been, I am satisfied that to a significant degree the offender’s actions were the result of her influence.

18 He told Dr Westmore that his intention had been to hurt the deceased, to scare him and to force him to confess his wrongdoing. He added that he did not expect it “to go that far.” However, I am satisfied that he intended to kill the deceased. No other conclusion is available from the nature of the attack and from what he told police in the recorded interview. Indeed, he told the interviewing police that that was his purpose in going to the house. However, this is not to deny his disturbed state of mind at the time. The manner of the killing, including the fact that it was perpetrated with implements found at the house, is inconsistent with cool deliberation and planning.

19 Dr Westmore saw the offender on three occasions this year. He described him in his first report as “an extremely troubled individual”, a view consistent with the findings of Ms Katherine Barrier, psychologist, who also assessed him. Dr Westmore could arrive at no firm diagnosis, but his provisional diagnosis was a severe personality disorder and he considered him to be in need of long term psychotherapy. In consultations with Dr Westmore the offender expressed remorse for his crime, although the doctor noted that it was directed towards the deceased’s family rather than the deceased himself. The attitude he expressed about the deceased was that, if he had been a paedophile, he should have been imprisoned but did not deserve to die.

20 Dr Westmore described the offender’s prognosis as “most uncertain”, and was not prepared to express an opinion about whether he remains a danger to the community. He was concerned that the offender might be a risk to paedophiles, given that he had expressed strong feelings about them during the consultations, saying that he considered sexual abuse of children to be more serious than murder.

21 On the other hand, Dr Westmore acknowledged in oral evidence that there are hopeful signs for the future. The offender told the doctor that he got into fights occasionally and often entertained thoughts of a violent kind. However, this is not the personality described in the evidence of the relatives to which I have referred, which paints a picture of a kind and affectionate young man who was not observed to be violent or ill-disciplined. He did not fare well at school and left before completing year 10. However, he had a satisfactory employment history, albeit in unskilled work. His brief criminal record does not disclose a violent propensity. He appears to have met his obligations under the community service order satisfactorily and, except for the period immediately prior to the killing, to have been amenable to the assistance and guidance of the Probation and Parole Service.

22 In my view, the offender’s crime is explicable by his relationship with Mark Valera and Belinda Van Krevel and his personal circumstances at the time. Having given the matter careful consideration, I am not persuaded that he is a continuing danger to society. Indeed, if he has the benefit of the psychotherapy recommended by Dr Westmore, I have some confidence that he will not re-offend in a violent way. His expression of remorse to Dr Westmore, while not as complete as one might wish, demonstrates an insight into the enormity of his crime. I think that he has reasonable prospects of rehabilitation, particularly as he will enjoy the continuing support of members of his extended family.

23 That said, this was a most brutal killing and its objective gravity demands a heavy sentence. I have received a statement by the deceased’s brother, writing for himself and on behalf of members of the family, which describes in a moving way the impact upon them of their loss. The approach of the Court to such a statement has been settled since the decision of Hunt CJ at CL in Previtera (1997) 94 ACrim R 76. Nevertheless, I think it appropriate that I should express my deepest sympathy to the family as, I am sure, would any member of the community. I have referred to the offender’s belief that the deceased was a paedophile, because that belief is relevant to an assessment of the criminality of the murder. However, nothing I have said should be interpreted as a finding that that belief was well founded. To pass judgment upon the deceased is no part of my function in this sentencing exercise.

24 The offender pleaded guilty at his arraignment in this Court, which the Crown accepts to have been the earliest reasonable opportunity. He is entitled to the benefit of that plea, both for its utilitarian value and for the extent to which it demonstrates his remorse. Whatever might be the current status of guideline judgments such as R v Thomson; R v Houlton (2000) 49 NSWLR 383, I think it appropriate to indicate in a general way the measure of leniency which that plea has earned him. But for it, I would have sentenced him to something in the order of twenty years imprisonment. In the light of it, the sentence I propose is sixteen years.

25 Clearly, the offender would benefit from a lengthy parole period. However, the application of the usual statutory proportion between head sentence and non-parole period would yield a non-parole period of twelve years, with the opportunity of conditional liberty for four years. I think that that period would be adequate to consolidate his rehabilitation, and the gravity of the crime is such that I do not believe that I could fix a non-parole period of less than twelve years. He has been in custody since his arrest on 18 August 2000.

26 Keith Andrew Schreiber, you are sentenced to imprisonment for sixteen years, to date from 18 August 2000, with a non-parole period of twelve years. You will be eligible for release on parole on 18 August 2012.

Last Modified: 03/04/2002