In the matter of an Application by Martin Ludwig Kluska pursuant to Schedule 4 of the Crimes (Sentencing Procedure) Act 1999

[2008] NSWSC 171

CITATION:	In the matter of an Application by Martin Ludwig Kluska pursuant to Schedule 4 of the Crimes (Sentencing Procedure) Act 1999 [2008] NSWSC 171
HEARING DATE(S):	22 February 2008
JUDGMENT DATE :	6 March 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J
DECISION:	Application to redetermine life sentence refused. Non parole period fixed
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Life sentence for offence committed in 1988 prior to legislation altering effect of such imposition - Application for determinate sentence refused but non parole period fixed
LEGISLATION CITED:	Sentencing Act 1989 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
PARTIES:	Martin Ludwig KLUSKA - Applicant REGINA - Respondent
FILE NUMBER(S):	SC 03/2003
COUNSEL:	R Button SC (Applicant) D Arnott SC (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Thursday 6 March 2008

IN THE MATTER OF AN APPLICATION BY MARTIN LUDWIG KLUSKA PURSUANT TO SCHEDULE 4 OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999

JUDGMENT

1 HIS HONOUR: Martin Ludwig Kluska (the applicant) was indicted upon a charge that on or about 20 July 1988 he murdered Bruce John Mannion. On 22 May 1990, following a lengthy trial, he was found guilty of that crime by the jury. On 10 August 1990, in the absence of finding any significant diminution in culpability for the murder, I imposed a sentence of penal servitude for life dating from his arrest on 28 July 1988. It was imposed in accordance with the applicable statutory sentencing regime.

2 I do not repeat the remarks which I made on that occasion. After the service of eight years in custody, the applicant sought redetermination of that life sentence and the setting of a determinate sentence pursuant to s 13A of the Sentencing Act 1989. That application was heard on 27 November 1998 and on 18 December 1998, for reasons then published, I declined the application and directed that no further application be lodged until three years had expired thereafter.

3 Since then, the Crimes (Sentencing Procedure) Act 1999 has been passed and existing life sentences such as that being served by the applicant became subject to the provisions set out in Schedule 4 to that Act. The application now before the Court is therefore governed thereby.

4 Some relevant clauses in the Schedule should be recited:

“3 (1) In considering an application in relation to an existing life sentence, the Supreme Court is to have regard to:
(a) all of the circumstances surrounding the offence for which the sentence was imposed, and
(b) all offences, wherever and whenever committed, of which the offender has been convicted,
so far as this information is reasonably available to the Supreme Court.
...

4 (1) The Supreme Court may dispose of an application in relation to an existing life sentence:
(a) by setting a specified term for the sentence together with a non-parole period for the sentence, or
(b) by declining to set a specified term for the sentence but setting a non-parole period for the sentence, or
(c) by declining to set a specified term for the sentence and declining to set a non-parole period for the sentence.
…
7 (1) In considering an application referred to in clause 2 (1), the Supreme Court is to have regard to:
(a) any reports on the offender made by the Review Council, and any other relevant reports prepared after the offender was sentenced, that are available to the Supreme Court, and
(b) the need to preserve the safety of the community, and
(c) the age of the offender (at the time the offender committed the offence and also at the time the Supreme Court deals with the application), and
(d) in the case of an offender sentenced before 12 January 1990 (the date on which section 463 of the Crimes Act 1900 was repealed by section 5 of the Prisons (Serious Offenders Review Board) Amendment Act 1989), the fact that the sentencing court:
(i) would have been aware that an offender sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900, and
(ii) would have been aware of the practice relating to the issue of such licences, and
(e) any other relevant matter.”

5 In accordance with the procedures which have been adopted for dealing with these applications, a statement of facts has been prepared. Paragraphs 12 to 34 provide an overview and a formal notice signed by the solicitor for the applicant accepts that these (as well as other matters) provide an accurate summary of the prosecution case.

6 I extract therefrom:

“12 The 37 years old victim Bruce John MANNION graduated from the University of New South Wales with a Bachelor of Science (Wool and Pastoral Science) degree and joined the Department of Agriculture. At the time of his murder he was an advisory officer with the Department of Agriculture and Fisheries at Dubbo.
13 He was involved in other pursuits in the Dubbo community including:
(1) Platoon Commander of the Dubbo Army Reserve Unit;
(2) Secretary of the Dubbo Railway Historical Society; and
(3) A member of the Anglican Community of the Good Shepherd.
14 The applicant was released to parole from Long Bay Prison Complex (sic - Parramatta) on 14 July 1987 after serving sentences for kidnapping, armed robbery, escape from lawful custody, being armed with intent to commit an indictable offence. The parole was extant until September 1989.
15 Through arrangements made by the Anglican Chaplain at Long Bay the applicant went to reside at the farm of Mrs Lola FOGARTY, a member of the Anglican Community of the Good Shepherd.
16 During the ensuing ten months he changed his place of residence on a number of occasions mainly through contacts in the Anglican Community, including two periods when he lived with the Weingarth family at St Faith’s House of Prayer in Dubbo.
17 The applicant came into contact with Bruce MANNION through their involvement with the Community and from late May 1988 until the murder he resided at the house of Mr Mannion at 34 Dalton Street, Dubbo.
18 One female member of the community recalled that about March/April 1988 the applicant informed her that he was really sick of being poor and wished he could get his hands on a lot of money. If he did so he would really like a car as he was sick of riding his push bike.
19 On or about 28 June 1988 a break and enter occurred at St Faith’s House of Prayer during which a number of items, including a Browning trombone action .22 rifle were stolen. The items were the property of Mr and Mrs Weingarth.
20 At this point it can be mentioned that Bruce MANNION owned a yellow Holden Camira sedan and also a Kawasaki 750CC motor cycle. He also had the use of a Nissan Pintara sedan in the course of his field work with the Agriculture Department.
(ii) Events of Wednesday, 20 July 1988 et seq
21 Bruce MANNION was last seen alive, by persons who knew him, in the applicant’s company at the Dubbo RSL at about 9.30pm on 20 July 1988. The applicant was heard to ask the victim whether he was ready to go home but the reply to the query was not heard.
22 Mr MANNION failed to attend for work on either 21 or 22 July 1988, did not arrive at his parents Sydney home by arrangement on the evening of Friday 22 July 1988 and when he had not appeared the next day on which he was to participate in a Regimental dinner that evening his father reported him missing to police.
23 The applicant was seen by a number of persons in Dubbo and adjoining areas on 21 July 1988 from about 7am when he was observed to be in the victim’s yellow Camira. Other sightings had him riding the victim’s Kawasaki motor cycle.
24 Shortly after midday on 21 July the applicant returned the Nissan Pintara, which Mr Mannion had been using, to the parking area at the Department of Agriculture and handed in the keys to the vehicle to a receptionist. On Monday 25 July an inspection of the front seat of the vehicle located what purported to be a letter of resignation signed by Bruce Mannion which was subsequently found to be a forgery – see paragraph 38 of this Statement.
25 Late in the evening of 21 July 1988 the applicant drove the victim’s Camira to Sydney where at about 2am on Friday 22 July he met up with two young females, MB and TJ at Chinatown.
26 At about 3am on 22 July the applicant, using the name Bruce Mannion booked into the Boulevarde Hotel Kings Cross with his female companions.
27 During the course of that day he withdrew $2000 from Mannion’s Westpac Bank account and used the money to purchase items of jewellery over the weekend. He also arranged by telephone for a removalist to go to Dubbo on Tuesday, 26 July and remove the furniture from 34 Dalton Street and take it to Surfers Paradise where it was to be placed in storage for a couple of weeks. The keys to the house were to be left at the Boulevarde Hotel for collection by the removalist.
28 On Monday, 25 July he withdrew another $1000 from the Westpac account of his victim before driving to Dubbo with MB late in the afternoon. As he did not have the keys with him he secured the services of a locksmith to gain entry to the Dalton Street premises from which he removed, inter alia, a stereo recorder. The couple then drove back to Sydney arriving at about midnight at the Boulevarde Hotel.
29 On 26 July the applicant again using the name of Bruce Mannion, arranged for a counter cheque for $10,000 to be made out at a Sydney Branch of the Westpac Bank which cheque was then cashed.
30 On Wednesday 27 July he scrubbed out the boot of the Camira before driving with MB and LJ to Parramatta where he left the girls in the vehicle while he took a motor cycle from Action Motor Cycles for a test ride to Concord.
31 When he reached Concord he went to Garrick O’Neill Motors in Parramatta Road where he had been the previous day to pay a deposit of $2000 on a Ford Fairlane.
32 While he was at the Motor dealers he was at about 11.15am approached by detectives to whom he gave the name of Bruce Mannion and produced identification from his victim’s wallet which also contained the sum of $5200.
33 He was told that he was to be taken to Burwood Police Station to be questioned about the disappearance of Mannion. On arrival at the Station he requested the Detectives to inform the two girls at Parramatta of his whereabouts.
34 Shortly after 1pm the arresting police handed over to Detectives McNevin and Allen the conduct of questioning of the applicant who admitted he was not Bruce Mannion but Kluska.”

Included in the above was a reference to paragraph numbered 38 of the statement of facts which reads:

“38 It might be noted that the applicant made no admission of responsibility for the disappearance and murder of Bruce Mannion but he did admit assuming his identity and withdrawing funds from his accounts, using his Holden Camira motor vehicle, arranging for furniture to be removed from Mannion’s Dalton Street house for storage and for signing the purported letter of resignation from the Department of Agriculture.”

7 In 1990 in my remarks on sentence I referred to a report by Dr Hugh Jolly, a psychiatrist, who had in 1985 opined that the applicant had a personality disorder of such severity, in the instance a form of psychopathy, as to be close to being a defect of reason. No issue of mental illness had been raised at trial but as I noted in 1998 when dealing with the previous application, the applicant had by 1997 been certified as a mentally ill person and classified as a forensic patient. He was then detained in a prison hospital.

8 There is no present need to detail aspects of history relating to assessed mental status from time to time since then. An up to date report (21 February 2008) from Dr Jeremy O’Dea is in evidence. Dr O’Dea was one of the two psychiatrists who certified the applicant in 1997.

9 Dr O’Dea records that the applicant is currently prescribed oral anti-psychotic medication (Amisulpride solrain 800 mg daily) and other medications for physical ailments. At various times the applicant has asserted that he has no need of antipsychotic medication but whilst in custody he can be compelled to take it. I would have serious concerns about the risk that the applicant would present to the community if he were to cease medication.

10 I have taken into account all of the material but specifically the whole of Dr O’Dea’s report and I recite his final conclusions and recommendations:

“Mr Kluska is suffering from a chronic severe paranoid schizophrenic illness characterized by long standing paranoid and somatic delusions, auditory hallucinations, and disorder in the form of his thinking, accompanied by mood and behavioural disturbance. He has limited insight into his illness and has a history of non compliance with psychiatric treatment.
That being said, it would appear that his schizophrenic illness has responded at least to some extent over the recent past to his current oral antipsychotic medication and management at Junee Correctional Centre. However, his schizophrenic illness has yet to come under adequate control with at least ongoing paranoia and thought disorder. I could not convince myself that he no longer held his paranoid and somatic delusions or that he (was) now (no) longer concerned about these beliefs.
I could not draw a direct causal link between Mr Kluska’s schizophrenic illness and the index offence or his forensic history. I note reference in the documentation made available to me to Mr Kluska’s personality. It is likely that he would satisfy the psychiatric diagnostic criteria for a diagnosis of a personality disorder. However, I would consider that his primary psychiatric diagnosis is of a schizophrenic illness and that his primary psychiatric management focus, at least in the short to medium term, should be on treatment of his schizophrenic illness, with additional focus on Mr Kluska’s personality and history of substance abuse. It would seem appropriate that Mr Kluska remain abstinent from alcohol and other drug use in the long term in order to manage and minimise the risk of relapse of his schizophrenic illness and further offending behaviour.
Regardless of the outcome of the re-determination of his sentence, Mr Kluska will require ongoing structured and supervised psychiatric care and treatment under the provisions of the New South Wales Mental Health Act in the long term in order to maximize his response to treatment and minimise the risk of relapse of his schizophrenic illness and minimise the risk of him engaging in further violent offending behaviour. This should involve reconsideration of antipsychotic medication via depot injection in addition to oral antipsychotic medication, with the aim of maximizing response to treatment and compliance.”

11 Even as recently as to Dr O’Dea in February this year, the applicant spoke of the time “once he has been acquitted of the murder”. As I have said previously, the proof of guilt was overwhelming but I cannot determine whether these protestations are aspects of the applicant’s mental condition or are false postures which he is deliberately presenting. Over the years the applicant has from time to time confessed his guilt and then recanted his confession. Bruce Mannion’s body has never been located. On one occasion when a confession by the applicant was “current” he took police to bushland in the Gnoo State Forest and indicated an area which was extensively cleared and excavated but no trace of Mr Mannion’s body was found.

12 Inter alia, the applicant has written to the then Commissioner of Police seeking to provoke missing persons action in relation to the deceased. He has also at times asserted that Bruce Mannion has in fact been found and buried in a cemetery plot in Sydney. To my observation Mr Mannion’s mother has attended the trial in 1990, the hearing in 1998 and the hearing of this application. I am informed that she is now eighty years of age. In the years that have passed since their son’s murder, Mr Mannion’s father has died but he has three surviving brothers. It is plain that the hope of Bruce Mannion’s family that his body might be found is dependent upon relevant information being forthcoming from the applicant. It is impossible for me to know the extent to which the applicant’s mental illness contributes to his unwillingness to locate it.

13 The applicant’s behaviour whilst in custody has not been good and there is a schedule in evidence setting out numerous disciplinary charges, but I note that misbehaviour seems to have ceased several years ago and the applicant is said to be calmer. He has engaged himself in some intensive bible study. I am satisfied that the compulsion to take medication has significantly contributed to stabilizing his situation.

14 The evidence also includes a series of reports from the Serious Offenders Review Council, the latest of which is dated 17 July 2007. It contains no express recommendation concerning this application but notes that classification will be reviewed in the light of whatever decision is made.

15 In relation to clause 7 (1)(d) of the Schedule above recited, it was agreed by counsel that I should have regard to the statistical survey which has been presented customarily in applications such as this, which show an average of approximately 11.7 years of actual custody before an offender included in the survey was released on licence. I take this into account. Great care, however, needs to be taken in using this statistic. In dealing with similar applications I have observed, and I repeat, that the survey is limited and, in addition, gives no account to the circumstance that there were offenders who were not released on licence at all.

16 There is also a statutory obligation in relation to this application to have regard to all prior offences (clause 3 (1)(b)). The applicant has a lengthy record, which it is not necessary to recount beyond that observation, and the observation that he was on parole when he committed the murder. In addition I must have regard to the age of the applicant, who was born on 26 June 1961 and was therefore aged twenty seven at the time of the offence and is now aged forty six.

17 As the records reveal, I passed remarks when originally sentencing the applicant and also when rejecting a similar application like the present in 1998. On both occasions, it being my duty in what are, in effect, extended sentencing proceedings, I delivered my remarks orally to the applicant as I shall again do on this occasion, in order to ensure, as far as I can, as a matter of practicality, that the applicant is informed of the reasons why courses are or are not taken and resentence declined or imposed. Nothing is to be gained by repetition of these previous remarks which should be regarded as incorporated herein.

18 As clause 4 (1) demonstrates, there are three available options.

19 Option 4 (1)(c) if applied, and accompanied by a prohibition on further application as authorized by clause 6 (1)(a), would have the effect of transforming the life sentence imposed in 1990 to which was impliedly attached a prospect of possible release on licence at some time, into a life sentence without that possibility.

20 Grave though the circumstances of the applicant’s crime are, I am unable to sustain the Crown submission that it falls into the category of a worst case. Some guidance as to what may constitute a worst case may be gained by observation of other cases where, either by imposition since 1989 or by the mechanics whereby application to redetermine existing life sentence is barred, an indeterminate sentence is to be served. It is sufficient to note that the applicant’s crime is not accompanied by the sorts of circumstances which led to those impositions.

21 I therefore conclude that some action in relation to the application should take place.

22 Senior counsel for the applicant submitted that I should implement clause 4 (1)(a) and set a determinate sentence and a non-parole period. He drew attention to the principle that sentences of mere preventive detention are impermissible at common law. Even at common law there is a distinction between extending a sentence merely to protect society and properly looking to society’s protection in the determination of sentence. That experience and discernment is required to draw the fine distinction between those concepts has been recognized by high authority.

23 It is to be remembered that the applicant is, upon the finding of the absence of diminished culpability, which finding is not challenged, the subject of a mandatory sentence of life imprisonment pursuant to statute. In the sense that it was mandated by statute it was not an imposition exclusively at common law. The present application is also governed by statute in the terms of Schedule 4. There is therefore a statutory obligation that regard be had to “the need to preserve the safety of the community”.

24 A determinate sentence, as distinct from setting a non-parole period, would see the applicant entitled to enforce his release from custody upon the expiry of term. It is true that there are provisions elsewhere, for example in mental health legislation, which might see him otherwise detained, but whether that happens or not is speculative and there is a present express statutory duty to act in the terms of Schedule 4 in relation to community safety.

25 I would assess the risk posed by the applicant to the community as high. In reaching that conclusion I have taken into account his considerable prior record of serious offending, his record of violent outbursts from time to time whilst in custody, his mental condition which is stable to the extent it is by reason of the ability for him to be compelled to continue medication, and to the risks inherent in his apparently unpredictable changes in recognition of his responsibility for killing.

26 In the whole of the circumstances I decline to set a determinate sentence.

27 However, there is a third alternative and that is, pursuant to clause 4 (1)(b) to set a non-parole period without altering the existing life sentence. That is an approach which is not available where an offender appears for sentence at first instance, as it were, and is exclusively available in these statutory proceedings. This application is to be determined in accordance with the statute and is therefore distinguishable from a conventional imposition of sentence following conviction. The principles to be applied are set out in the Schedule.

28 Taking into account the matters to which I am required to have regard, I conclude that I should decline to set a specified term but should set a non-parole period. The final issue is the length of that non-parole period. It is to be emphasized that expiry of a non-parole period does not mean that the applicant will be released, it simply sets a point of time at which eligibility occurs. Actual release, if it is to occur, will require further decision at the time when it is contemplated and statutory provisions as to parole require, among other things, a determination about the danger which a person, if paroled, might then represent to the community.

29 The applicant has been in custody continuously for over nineteen years. The non-parole period should represent the minimum time during which custody should continue. Some guidance can be extracted from sentencing patterns, including the average time prior to release on licence abovementioned, but the individuality of the applicant’s offence, its circumstances and his antecedents are set out in the accumulated material which I will not further summarize. I assess an appropriate non-parole period at twenty two years.

30 The application is granted to the extent of the following orders and directions:

(1) I decline to set a specified term of sentence for the offence of murder upon which the applicant stands convicted.

(2) I set a non-parole period in respect of the existing and continuing sentence of penal servitude for life of twenty two years commencing on 28 July 1988 and expiring on 27 July 2010.

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