R v van Krevel

Objective seriousness

1. A submission was made by Mr George, solicitor advocate for the Director of Public Prosecutions, that taking into account only objective factors the offence fell within the middle of the range. Mr Kwan, for the offender, said it fell below the range. The Director submitted that there were elements of gratuitous cruelty in the commission of the offence. The defence submitted this was not shown.
2. I am reluctant, unless required, to put labels on people's behaviour, particularly labels based on matters that are difficult to fit on some notional scale of seriousness. I prefer in a case such as this to let the facts speak for themselves, rather than using labels or repeating mantras. If a judge does so they may fall into the error by double-counting matters that must be taken into account by too rigid an application of s 21A(2) Crimes (Sentencing Procedure) Act 1999 (NSW) or by doubling counting matters also taken into account on Forms 1.
3. The Agreed Facts here reveal that the incident which involved two separate stabbings over a period of time. Obviously, this was a very serious example of its type of offence. I say that in context, knowing that there are less serious examples of such offences and others where, because of the injuries and permanent harm suffered, that are significantly more serious.
4. The offence occurred in the home of the victim. It was precipitated by the assaults to be taken into account on the Form 1. There was continued violence. The first wound was premeditated and inflicted from behind. The second stabbing occurred while the victim was vulnerable from loss of blood following the first stabbing. The stabbings were separated in time. In addition, van Krevel deprived him of his phone. And she sought, unsuccessfully, to terminate the triple-0 call. The injuries were serious; noting that grievous bodily harm is an element of the offence.
5. So serious was the offence that it is accepted a custodial sentence of some length must be imposed.

Maximum penalties and standard non-parole periods

1. The maximum penalty is 25 years' imprisonment. There is a standard non-parole period of 7 years. The guidance offered by both the standard non-parole period and maximum penalty, must be taken into account. They are yardsticks against which I must measure this sentence. Content should be given to the standard non-parole period. That said, one does not start with the maximum or the standard non-parole period and then make proportional deductions to or from them.

Plea of guilty

1. The plea of guilty was entered in the Local Court. It has value. It had utilitarian value. Her initial denials were not pursued. It shows an acceptance of responsibility. For the utilitarian value of the plea, I will reduce the otherwise appropriate sentence by 25%. Other aspects of that plea will also be taken into account and synthesised into the ultimate sentence.

Matters on Form 1

1. I will take into account the matters on the Form 1. I do not sentence for those matters. I have to take particular care here because two precipitating assaults formed part of a pattern of violence between van Krevel and her victim. The two stabbings making up the wounding, the subject of the principal offence, were part of a continued course of conduct which seems to have, as a precipitating fact, some perceived jealousy by the offender. I have to be careful when I come to consider, as I have, the circumstances leading up to the offence, that I do not double-count them.

Criminal record

1. Van Krevel has a criminal record, the most serious matters to which I have already alluded. There is a history of like offending and a criminal record over many years. At the relevant time she was on bonds to be of good behaviour. Her liberty was conditional on a promise to be of good behaviour; she was not.
2. Her criminal history is relevant to determining the proper sentence. It indicates that this offence was not an uncharacteristic aberration. It demonstrates continuing disobedience towards the law. That history however cannot result in a sentence which is disproportionate to the gravity or seriousness of the offence for sentence, but it does warrant a more severe penalty.
3. In Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 the Court spoke of the need for an additional focus on retribution, deterrence, and the protection of society. Here, those principles will be taken into account, particularly protection of the community.
4. It is important to note that during her first 6 year sentence the offender was "further traumatised … by the management at the Mulawa Correctional Centre", matters referred to in the sentencing judgment and set out at page 10 of Dr Furst's report.
5. Dr Furst has personal experience of that part of the gaol at the relevant time. In his report at page 10 he says: "The cells used at the time were much like large animal cages" [and led to the] regression of female prisoners, frequent self-harm, limited verbal communication, apart [from] with other highly disturbed women …, conditions that were barely humane, if not inhumane."
6. The courts and the community should not ignore the lived experience of gaols. She did not come out of gaol on that occasion any better person than when she went in.

Subjective case

1. The case for the offender is presented in; the report of Dr Furst of 13 February 2024, gaol certificates which indicate she has been engaging in programs made available, a report from Dr Di Martino, psychologist, who had previously spoken to her, and a report from a counsellor who is seeking, from outside the gaol, via AVL, to provide her with assistance.
2. No evidence was given by van Krevel, but the material before me is not in serious dispute and it is accepted that Dr Furst's professional report addresses in a fair manner the critical issues that were put to him, and that he is not simply parroting material given to him by the defendant.
3. It is not in dispute that the offender's moral culpability is less that a person whose life was not blighted by the effects of childhood deprivation, childhood trauma, violence and ongoing mental health issues which were primarily reflected in regular diagnoses of complex Post-Traumatic Stress Disorder. The impacts on her of her background do not diminish with time.
4. It is a tragic fact that a succinct summary of that background set out in Barr J's sentence from 2003 can be repeated in these proceedings: R v van Krevel [2003] NSWSC 227. He said at par 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 occasion the bashing was so hard that Valera had to be taken to hospital. The offender used to see and hear what the deceased was doing. He abused her as well. Sometimes he would beat her until she wet herself."
5. Turning now to Dr Furst's report. The critical issue raised in the oral and written submissions of the parties was not the accepted background of the offender, nor that appropriate and proper weight should be given to her diminished moral culpability for the offending, so much is accepted. Where someone's moral culpability is diminished because of their background that does not mean, however, that they should not bear responsibility for their crimes.
6. The offender has accepted responsibility for her crimes and accepts the need for appropriate punishment. Critically, the question was a question of how the community can be protected given the striking similarities between the 2013 and 2023 offences.
7. Both parties acknowledged the opinion of Dr Furst. He noted for the first time that, in addition to the complex Post-Traumatic Stress Disorder, he believed the offender suffered from a Borderline Personality Disorder ("BPD"). In his report he set out in detail what that disorder might involve. It includes "chaotic and unstable interpersonal relationships". It includes the possibility for "misperceptions and faulty emotionally-based reasoning". BPD "frequently leads to problematic decisions and behaviours, including a tendency to project their own negative feelings onto other people".
8. Dr Furst noted that her "severe psychopathology [was] as a consequence of protracted childhood abuse and neglect"; a matter not in dispute. As I said earlier, he noted that it was exacerbated by her time in custody.
9. It would appear that during the first offence she was in a dissociated state. The reports from the time and the opinions going back in time, cited by Dr Furst at page 10, note that her reported symptoms back in 2001 included "depersonalisation arising as part of Post-Traumatic Stress Disorder". Dr Furst, did however, note that "Ms van Krevel is an unreliable historian".
10. Unlike the possibility that there was a dissociated state during the earlier 2013 offence, on a review of the facts his professional opinion was that the events outlined suggest "her offending [here] was motivated by anger, jealousy, and an unstable personality disorder." She "was conscious of her actions because she debated the injuries with the victim". He noted that she was probably disinhibited by some pills that she had been given. "She was aware of her actions and their … potential seriousness."
11. He then noted, "Unfortunately, available evidence suggests that treatments for [BPD] tend not to make much difference to either short-term or long term symptoms and outcomes". He noted some matters which would provide some benefit and noted that there are treatments available from the Personality and Behaviour Disorders Unit of Corrective Services. He recommends that they intervene in her case.
12. In his opinion, therapy and protective measures would "likely be of some assistance in managing her impulsivity and aggressive tendencies." Further, "long-term supervision, monitoring and therapy will be required, with particular attention being paid to risks in future domestic [and] interpersonal relationships."
13. In Dr Furst's opinion, as I read it, her prognosis is guarded. There are, however, some positive signs. When she spoke to Dr Furst she told him, at page 4: "I know what I did … Now it's happened twice. Why did I do that? … It's not like I was feeling an emotion. I was not in control of my actions. If I was with it, I would not have done it. I was completely disconnected. No control. Completely detached."
14. There is a conflict there; as Dr Furst points out. But at least it shows that she is showing some insight into her behaviour. And she is taking active steps while in custody to do what she can do. Unlike previous times in custody, she has shown maturity and co-operation with authorities, there have been no infractions on her record; a stark contrast to her earlier periods in custody. She has shown a degree of maturity and insight into her behaviour. She has willingly embraced the need for continued therapy and assistance, and she now has a trusted job in the gaol.
15. A copy of Dr Furst's report will go with the warrant.

Submissions

1. Mr Kwan made the point that while it is necessary to take into account community protection, that can be done by a structured sentence which allows for the maximum possible time on parole so that she can be supervised and monitored.
2. Mr George in response, noted that the principles in relation to taking into account a person's psychiatric condition and risk of further dangerousness do not all point one way and that the principles set out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, also included the need for the court to take into account matters relating to future dangerousness and risk.
3. I was also referred to Jinette v R [2012] NSWCCA 217, Potts v R [2012] NSWCCA 229 and Dong v R [2021] NSWCCA 82.

Synthesis

1. An offender who has a start in life that van Krevel had does not bear equal moral responsibility as someone who had what might be termed a 'normal' or 'advantaged' upbringing. Her background has left her marked; it has damaged her. She has two significant psychiatric or mental conditions. Sadly, the impact of those conditions does not distinguish her many from other prisoners. She has however, suffered in the past while she has been in custody. She does not have the resources that others without that background have to guide their behaviour. But she must also bear responsibility for what she did. Although not the same way as someone whose formative years had not been marred in the way set out in the material before me: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; R v Millwood [2012] NSWSC 2 at [69].
2. She will remain a risk when released to the community. A gaol sentence can only remove her from the community for so long. She must be returned to it, hopefully, this time in a better state than in the past. And better able to comply with parole conditions. Her release to parole will be conditional upon the State Parole Authority being satisfied that community safety concerns can be met.
3. She is now older and more mature. She has shown some discipline while in custody. Her time in gaol will deter her; I am sure. There was, however, very serious offending and the potential for much more serious harm was there.
4. I do not have a Victim Impact Statement, but its absence does not mean there was no impact, both physical and psychological; one presumes there was. The wounds and the infliction of the second wound after the first, after a period when the victim was even more vulnerable, of which I have already referred to; those injuries require vindication, and they require the sentence signal community disapproval.
5. There will be a finding of special circumstances to allow for supervision and monitoring, access to treatment so that she can be helped in adjusting to normal community life. But the minimum term must reflect what was done and the purposes of sentencing and requires her removal from the community for a further period.
6. The sentence takes into account 25% utilitarian discount or reduction. The sentence will commence the day she went into custody; on 6 March 2023.

Orders

1. There will be a non-parole period in this matter of 4 years starting on 6 March 2023, making van Krevel eligible for consideration for release to parole on 5 March 2027. The balance of the term of 2 years starts on 6 March 2027 and expires 5 March 2029.
2. A total sentence of 6 years' imprisonment, non-parole period 4 years, parole period 2 years.

Amendments 06 May 2024 - Amended typographical errors. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2024