Kluska, Martin Ludwig v The Queen

[2009] NSWCCA 289

New South Wales
Court of Criminal Appeal

CITATION:	KLUSKA, Martin Ludwig v R [2009] NSWCCA 289
HEARING DATE(S):	28 September 2009
JUDGMENT DATE:	11 December 2009
JUDGMENT OF:	McClellan CJatCL at 1; Fullerton J at 1; Schmidt J at 1
DECISION:	1. Leave to appeal granted. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal against decision refusing redetermination of life sentence
LEGISLATION CITED:	Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Mental Health Act 1990 Sentencing Act 1989
CATEGORY:	Principal judgment
CASES CITED:	R v Kluska (Court of Criminal Appeal, 14 February 1994, unreported) R v Kluska (Supreme Court of New South Wales, Grove J, 18 November 1998, unreported) R v Kluska [2001] NSWCCA 284
PARTIES:	Martin Ludwig Kluska (App) The Crown (Resp)
FILE NUMBER(S):	CCA 2008/6383
COUNSEL:	Applicant in person LMB Lamprati SC/S Dowling (Resp)
SOLICITORS:	Applicant in person Solicitor for Public Prosecutions (Resp)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2003/03
LOWER COURT JUDICIAL OFFICER:	Grove J
LOWER COURT DATE OF DECISION:	6 March 2008

2008/6383

McCLELLAN CJ at CL
FULLERTON J
SCHMIDT J

11 DECEMBER 2009

MARTIN KLUSKA v R

Judgment

1 THE COURT: The applicant seeks leave to appeal under cl 8(1)(a) of schedule 1 to the Crimes (Sentencing Procedure) Act 1999 (“the Act”) against a decision by Grove J of 6 March 2008 refusing an application brought by the applicant pursuant to Schedule 1 of the Act for a redetermination of the life sentence his Honour imposed on 10 August 1990 after a jury found the applicant guilty of the murder of Bruce Mannion.

2 Although his Honour declined to set a determinate sentence he did set a non-parole period of 22 years in respect of the life sentence pursuant to cl 4(1)(b) of Schedule 1 of the Act. The non-parole period is due to expire on 27 July 2010 at which time the applicant is eligible to be considered for release to parole. The application for leave to appeal is solely in relation to his Honours refusal to set a determinate sentence.

3 The applicant was represented in the proceedings before his Honour. He appears on his own behalf in this Court. It would appear that the Notice of Appeal and the Grounds of Appeal were prepared without legal assistance. The filed grounds of appeal contend that his Honour was led into error by the Crown, and by reason of the incompetence of his own counsel, as to the facts upon which the murder conviction was based. In summary, the applicant contended that he was wrongly convicted of the murder and that the conviction and the life sentence imposed following his conviction in 1990 constituted a miscarriage of justice. For this reason he submitted that the life sentence should have been redetermined and that his Honour was in error in not doing so.

4 To the extent that the application for leave to appeal seeks to challenge the conviction against which the life sentence was imposed it is misconceived. Despite the fact that his Honour was obliged by cl 3 of the Schedule to have regard to all the circumstances surrounding the offence, in order, inter alia, to consider the need to preserve the safety of the community as provided for in cl 7, it formed no part of his Honour’s function to enquire into the circumstances of the offence for the purpose of revisiting the question of guilt. By cl 8 of the Schedule, the appeal to this Court is restricted to exposing error in his Honour’s determination of the application brought by the applicant under cl 4(1) of the Schedule.

The history of the proceedings following conviction

5 At the time of the original sentence proceedings s 19A of the Crimes Act 1900 (since repealed) required the imposition of a life sentence following a conviction for murder save where the offender’s culpability was shown to be significantly diminished. At the time of sentence his Honour was satisfied that there was no medical evidence probative of the applicant suffering from a psychiatric condition, and no other evidence justifying a departure from the mandatory terms of s 19A. His Honour did, however, recommend that a psychiatric assessment of the applicant be undertaken by the prison authorities.

6 On 14 February 1994, this Court heard an appeal against the applicant‘s conviction and an application for leave to appeal against sentence. The appeal against conviction and the application for leave to appeal were dismissed: R v Kluska (Court of Criminal Appeal, 14 February 1994, unreported).

7 On 27 November 1998, Grove J heard an application brought by the applicant under s 13A of the Sentencing Act 1989 (since repealed) for a redetermination of the life sentence. At that time the applicant had served 10 years and 5 months in custody but was classified as a forensic patient and detained in a prison hospital.

8 Under s 13A(8B) of the Sentencing Act his Honour had power to redetermine the sentence and to set a minimum and additional term, or to decline to do so. In addition, his Honour had the power to direct that the applicant not re-apply for a further redetermination of sentence for at least three years if satisfied that the murder met the classification of a most serious case and that it was in the public interest that there be no application for a redetermination before the expiration of that three year period. His Honour dismissed the application and directed that there be no further application for redetermination of the life sentence for a period of three years: R v Kluska (Supreme Court of New South Wales, Grove J, 18 November 1998, unreported).

9 On 18 July 2001 this Court dismissed an application for leave to appeal from his Honour’s decision (see R v Kluska [2001] NSWCCA 284).

10 In exercising the power under s 13A of the Sentencing Act his Honour was obliged to have regard to the views of the Serious Offenders Review Council constituted by s 195 of the Crimes (Administration of Sentences) Act 1999. That body reported generally on the difficulties that the prison authorities had experienced in managing the applicant after he was classified as a forensic patient under the Mental Health Act 1990 some 18 months earlier (the details of which will be outlined shortly). His Honour also noted that the applicant’s then treating psychiatrist, Dr Wilcox, was confronted with what she described as a practical dilemma in so far as the applicant’s future treatment was concerned due to the fact that the success of that treatment, and in turn the applicant’s rehabilitative prospects, depended upon his compliance with a pharmacological regime of antipsychotic medication to address his psychiatric illness. Dr Wilcox reported that the applicant did not believe he needed medication and that he was compliant with the regime only with a view to maintaining his classification as a forensic patient for his own reasons fully appreciating that because of that classification he could be forced to take the prescribed medication. In these circumstances, and with an apprehension that should the applicant stop taking the medication there was a real risk that his offending behaviour would recur, his Honour was not persuaded that the application for redetermination should be granted. His Honour was conscious that while the law does not permit preventative detention, he was also firmly of the view that any proportionate sentence that might be imposed for the murder would well exceed the time the applicant had already served in custody, together with the additional three years before a further application for redetermination could be made in accordance with his direction.

The applicant's psychiatric history within the prison system

11 It would seem that the applicant was first admitted to the Long Bay Prison Hospital Complex in 1994 with what was described as “a psychotic illness”. At this time the applicant reported to his treating psychiatrists the belief that:

“..four years earlier, during a hernia operation, doctors had deliberately occluded his left vas deferens, which he believed resulted in prostatic swelling and kidney damage. He believed that the doctors inflicted this on him in order to force him to restrict his water intake to the point where delirium would supervene and he would confess his guilt in relation to the crime.”

12 During the first three week admission to hospital in 1994 his treating psychiatrist noted that the applicant remained without insight into his condition, that he was hostile to any suggestion he might have an illness requiring treatment and, after accepting antipsychotic medication for a short time, refused all further medication. He was readmitted to the Long Bay Prison Hospital Complex approximately two months later during which time it was noted that he was floridly psychotic with multiple persecutory and somatic delusions. He was at that time commenced on antipsychotic medication by depot injections. On discharge from hospital he was non-compliant with medication with an exacerbation of his delusions leading to threats of violence.

13 On 28 July 1997, after further non-compliance with his medication, the applicant was transferred to a hospital pursuant to s 97(1) of the Mental Health Act the Chief Health Officer having received certification from Drs O’Dea and Wilcox that the applicant was a mentally ill person as defined under the Act. He was at that time diagnosed with a delusional disorder manifested by psychosis with multiple persecutory and somatic delusions and an antisocial personality disorder. (I note that in other reports the diagnosis at this time has been identified as a severe paranoid schizophrenic illness which remains his current diagnosis subject to the illness now being described as chronic.) During the admission in 1997 it was noted that the applicant believed there was a conspiracy to kill him involving doctors and nurses and prison officers and, in particular, that he was convinced that the treating psychiatrists were hiding in neighbouring toilets while he was defecating and that they were talking to him telling him he would suffer until he told them where the deceased’s body could be found. He was recommenced on antipsychotic intravenous medication. He has remained hospitalised within the prison system as a forensic patient for extended intervals since that time.

14 On 29 November 2000 the applicant was transferred to Long Bay Hospital as a psychiatric patient and was thereafter transferred to the Metropolitan Medical Transient Centre following a recommendation from the Mental Health Review Tribunal. From that time the applicant has on occasions refused to attend on psychiatrists for the purposes of the preparation of psychiatric reports or to participate in case management training processes on the basis of his vehement disagreement with his diagnosis of mental illness. At other times, after submitting to medication administered either orally or by depot injection, he has acknowledged and accepted his responsibility for the murder and appears to have welcomed the assistance medical staff have provided for him. His progress however, has been variable with admissions to the Long Bay Prison Hospital complex in 2004 with increasing persecutory delusions, abusiveness and threats of aggression. At the time of the application before his Honour, and at the time of the hearing before this Court, he was an inmate at the Junee Correctional Centre where it would appear his condition was being adequately managed despite the fact that in Dr O’Dea’s opinion he continues to have limited insight into his psychiatric condition and his psychiatric treatment needs. This was amply demonstrated in the course of his appearance in the proceedings before this Court.

15 On 15th February 2008 Dr O’Dea interviewed the applicant at the request of the Office of the Director of Public Prosecutions in relation to the then pending application for redetermination before Grove J scheduled for 22 February 2008 and provided a comprehensive report, which was tendered in the proceedings. In that report the applicant maintained his innocence and expressed a determination to prove his innocence, inclusive of offering his body to science, once he was released in order that his subconscious might be accessed.

The application before Grove J

16 On the application for redetermination before Grove J from which the present application is brought, the applicant again sought orders that a specified term for the sentence be set together with a non-parole period. At the time of the application he had served almost 20 years imprisonment. The applicant’s case was supported by two affidavits, one from his solicitor and one from an educational officer, which referred generally to his pursuit of religious and vocational studies whilst in custody. It was submitted on his behalf that the circumstances of the offence as revealed by the tender of agreed facts, together with the sentence imposed viewed in the context of relevant statistics, including sentences imposed by reference to the standard non-parole period of 20 years for murder, a non-parole period of more 25 years could not be justified.

17 The Crown submitted that his Honour should decline to set a non-parole period for the sentence since the murder was properly described as within the category of worst case. The Crown also sought a direction pursuant to cl 6(1)(a) of the Schedule to the Act that the applicant not be permitted to re-apply to the Court for redetermination of his sentence.

The judgment under appeal

18 In his judgment Grove J referred to the agreed statement of facts and extracted the material matters bearing upon the commission of the offence at paragraph 6 of the judgment in accordance with the requirement under cl 3(1) of the Schedule to the Act to have regard to all of the circumstances surrounding the offence for which the sentence was imposed.

19 In summary, the facts detail the relationship between the applicant and the deceased through their mutual involvement with the Anglican community at Dubbo following the applicant's release from custody to parole in 1987 after serving sentences for kidnapping, armed robbery, escape from lawful custody and being armed with intent to commit an indictable offence. The deceased owned a yellow Holden sedan and a Kawasaki motorcycle. He was last seen alive in the applicant's company at about 9:30pm on 20 July 1988 at which time the applicant was heard to ask the deceased whether he was ready to go home. The deceased failed to attend work the following day and when he did not arrive at his parents’ home in Sydney by arrangement on the evening of 22 July 1988 his father reported him missing to police. The applicant was seen in Dubbo on 21 July in the deceased's yellow sedan and riding the deceased’s motorcycle. In another vehicle to which the deceased had access also in the applicant's possession after his disappearance police located a forged letter of resignation in the deceased's name. On 22 July the applicant, using the deceased's name, booked into a Sydney hotel with two young women. During the course of that day he withdrew $2000 from the deceased's bank account. This was the first of the number of transactions on that account. He also removed property from the deceased's home.

20 The agreed facts note that the applicant admitted assuming the deceased's identity, utilising his vehicles and his bank accounts for his own purposes and signing the purported letter of resignation when arrested but denied any responsibility for the disappearance and murder of the deceased.

21 His Honour referred extensively to the report of Dr O’Dea and concluded that he would have serious concerns about the risk which the applicant would present to the community were he to cease his medication.

22 Grove J observed:

“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.”

23 His Honour discussed the distinction at common law between extending a sentence merely to protect society and properly looking to the protection of society in the determination of sentence. His Honour then noted that in considering the application for both the redetermination of the life sentence and the fixing of a non-parole period that regard be had to the need to preserve the safety of the community. His Honour concluded that:

“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.”

The applicant’s case in this Court

24 Very extensive written material was filed in support of the application. On close reading much of the material seeks to mount a challenge to the murder conviction both as to the sufficiency of evidence to support it, the conduct of the investigating police in assembling it, the prison authorities in tampering with evidence he was to rely on in his defence at trial and the Crown in presenting its case in the absence of a body or a murder weapon. He also complained about his lawyers who have from time to time failed to follow his instructions.

25 At the hearing the applicant confirmed that he understood that the hearing before Grove J proceeded on a set of agreed facts. In oral submissions the applicant claimed that he had been made a mentally ill person by Grove J who had:

“…ordered prison authorities to do a medical experiment on me which they did by putting a blockage in my left vas deferens and it’s been there for over 18 years and I’ve been in pain and agony and been refused pain killers for all that time and I’ve been told constantly it’s going to stay there until I either become uremic or confess to the crime and I have no knowledge because I have always declared I was never there at the scene of the crime and I put this submission that the reasons why I’ve been made mentally ill is because I wrote to members of Parliament to have those criminal acts that were performed on me investigated and because of that I was made a forensic patient in order to shut me up.”

26 The applicant also complained that Grove J was punishing him for not confessing to a crime, which he believed the applicant had committed. The applicant insisted that he did not murder the deceased and that he was not mentally ill. He complained that he was being tortured and tormented into believing, or accepting the Crown’s evidence against him and to confess to the murder. The applicant also complained of being forced to take psychotropic drugs for an illness which he did not have.

The applicant’s case was not established

27 After reviewing the evidence tendered before his Honour, in particular the agreed facts and the comprehensive report furnished by Dr O’Dea, we can detect no error in his Honour’s reasons for declining to fix a determinate sentence. His Honour had proper regard to the matters specified in the Schedule by reference to the evidence before him and concluded, as was open to him, that the risk which the applicant posed to the community was high having regard to his considerable prior record, his record of violent outbursts while in custody, his mental illness, albeit rendered stable by medication, and his apparently unpredictable changes in attitude towards his responsibility for the murder.

28 In fixing a non-parole period, Grove J had regard to the fact that the applicant had been in custody continuously for over 19 years. His Honour assessed that in all of the circumstances, the appropriate non-parole period was 22 years. There is no challenge to that finding in any event.

29 Accordingly, the orders are as follows:

1. Leave to appeal is granted.
2. The appeal is dismissed.

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