R v Charlotte Karin LINDSTROM

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.

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.

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.

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.

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.

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:

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.

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.

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 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 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.

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.

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.

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.

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.

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.

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”.

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 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.

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.

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.

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.

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.

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.

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

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

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.

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.

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.

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.

The evidence before the Court is that:

The psychologist opines:

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.

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.

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

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

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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

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.

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:

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:

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.”

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.

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.

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

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.