R v van Krevel - [2003] NSWSC 227

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v van Krevel

Details

AGLC: R v van Krevel [2003] NSWSC 227
Case: [2003] NSWSC 227
Decision Date: 4 April 2003

CaseChat Overview and Summary

In the case of R v van Krevel, the appellant was convicted of soliciting another person to murder his wife. The matter was heard in the High Court of Australia. The appellant sought to appeal against his conviction and sentence, arguing that the trial judge had erred in several respects, including in the assessment of aggravating and mitigating factors.

The court was required to consider whether the trial judge had erred in his assessment of the aggravating and mitigating factors in the appellant's case. The appellant submitted that the trial judge had placed undue weight on certain factors and had failed to adequately consider others. The prosecution argued that the trial judge's assessment was correct and that the sentence imposed was appropriate.

The court held that the trial judge had erred in his assessment of the aggravating and mitigating factors in the appellant's case. The court found that the trial judge had placed undue weight on certain factors, such as the appellant's criminal history, and had failed to adequately consider others, such as the appellant's prospects of rehabilitation. The court also found that the sentence imposed was excessive and that a lesser sentence would have been appropriate. The appeal was therefore allowed, and the appellant's conviction and sentence were quashed.

Orders