Regina v Michael Kiely

[2002] NSWSC 1222

CITATION:	Regina v Michael Kiely [2002] NSWSC 1222
FILE NUMBER(S):	SC L25/96
HEARING DATE(S):	13 December 2002
JUDGMENT DATE:	16 December 2002
PARTIES :	Regina Michael Kiely
JUDGMENT OF:	Sully J at 1

COUNSEL :	P. G. Ingram - Crown C. Craigie SC - Applicant
SOLICITORS:	Director of Public Prosecutions, NSW - Crown Legal Aid Commission of NSW - Applicant
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 NSW Crimes (Administration of Sentences) Act 1999
DECISION:	Application granted; Re-determined sentence - 18 years with non-parole period of 14 years, commencing 17 April 1989 and expiring 16 April 2003

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

SULLY J

16 December 2002

L25/96 – REGINA v MICHAEL KIELY

DETERMINATION:

1 HIS HONOUR: Before the Court is an application by Mr Michael Kiely for the redetermination of a sentence of life imprisonment that he is currently serving.

2 On 31 July 1990 the applicant was indicted before me jointly with one Dimitrios Lagopodis. Both were accused of having murdered one Mark Andrew Soyka; both pleaded not guilty; and they stood, thereupon and jointly, trial by jury. The jury found both of them guilty as charged. I was the presiding Judge at the joint trial; and in due course, and on 7 September 1990, I sentenced both the applicant and Mr Lagopodis to imprisonment for life.

3 In 2000 Mr Lagopodis applied for the redetermination of his life sentence. I heard that application; and in a reserved judgment which I delivered on 11 December 2000, I granted the application, substituting for the life sentence a sentence of imprisonment for eighteen years with a non-parole period of fourteen years. A copy of that reserved judgment was formally marked as exhibit C5 in the present application. The contents of that judgment should be read in conjunction with the present judgment.

4 The applicant appealed unsuccessfully to the Court of Criminal Appeal against his conviction for murder. The judgment of Gleeson CJ summarises conveniently and as follows the relevant objective facts.

“In April 1989, after having received certain information, the police found, in a hidden grave, the badly decomposed body of a man identified as Mark Andrew Soyka. Soyka had been missing for almost eighteen months. The appellants were later charged with the murder of Soyka and, following a trial before Sully J and a jury, were convicted. They appeal against their conviction.
The issues at the trial were narrow. It was not denied that Soyka had met his death in the company of the appellants, and following physical abuse at their hands, or that they had subsequently buried his body in an attempt to conceal his death. Many of the alleged facts concerning the circumstances in which Soyka met his death were substantially undisputed.
In November 1986 the appellant Kiely was the lessee of some premises at Kings Cross which were used for the purposes of prostitution. The appellant Lagopodis was employed in connection with that business. Kiely had a wife, Susan Kiely, and a girlfriend, Julie Murray. Soyka was a young drug addict and criminal who had some undefined association with Kiely. He was suspected of having stolen money from persons connected with Kiely.
I n Kiely’s premises, there was a room known as the ‘bondage room’. In that room there was a rack. Soyka paid a visit to Kiely and found himself placed, involuntarily, on the rack. According to a witness he was stripped and placed face down with his head, arms and feet secured at each end by stocks. Whilst on the rack Soyka was punched and otherwise physically abused. The precise extent of that abuse was in issue. There was also a dispute as to the length of time he spent on the rack. What was agreed, however, was that he was put there at the direction of Kiely, and assaulted by people including Lagopodis, and that the main reason for this treatment was related to his theft of money.

Mrs Kiely was in the bondage room for part of the time during which Soyka was on the rack. She gave a detailed description of what she saw and heard. There was a contest as to some of her evidence in that regard, but it was not in dispute that Soyka was put on the rack, and no-one suggested that he was put there for his own good.

It was common ground that, very shortly after he was released from the rack, Soyka collapsed and died. Subsequently, the appellants disposed of his body.”

5 It is relevant to supplement that extract with the following extract from my own original remarks on sentence.

“The matter falls to be determined by reference to s 19 of the Crimes Act as unaffected by the amendments introduced by the Crimes (Life Sentences) Act No 218 of 1989. In other words, the conviction for murder attracts a mandatory sentence of life imprisonment subject only to one qualification for which s 19 provides, that is, the qualification that it appears to the sentencing judge ‘that the person’s culpability for the crime is significantly diminished by mitigating circumstances’.
No mitigating circumstances have been put to the Court and it is necessary therefore only to say that in my opinion there are in any event no possible circumstances which could mitigate the culpability of Mr Kiely in respect of this crime.
I am satisfied, to take the version of the objective facts most favourable to him, that, as he himself conceded, having it divined it would seem accurately, that the deceased had stolen money from him or from people to whom he was responsible to account for the money, he decided, in his own words that he would ‘get’ the deceased for the purpose of ‘teaching him a lesson’.
Taking, as I say again, the view of the facts most favourable to the prisoner, it cannot sensibly be doubted that the way in which he went about teaching that lesson involved a combination of the deliberate mental harassment and intimidation of the victim and the perpetration upon his person of what can only be described as a serious and sustained assault. The crime was a sordid and dreadful crime which involved the deliberate participation in the activities, as I have briefly and all too inadequately described them, of four adult men dealing with one seventeen year old youth.
There are plenty of things, no doubt, which can be said about the deceased, whose personal and social profile, if I may so refer to it, is anything but an attractive one, but nothing that can be said about the deceased can possibly excuse the things that were done to him and which incontestably brought about his death.
The circumstances of the crime are most certainly not made any better by the way in which the present prisoner and those who had acted in concert with him subsequently disposed of the body of the deceased. From first to last the whole episode has about it a cruel, cowardly and brutish character. I have no doubt that the statutory penalty is entirely appropriate and I propose to impose it accordingly.”

6 The applicant has been in continuous custody since 17 April 1989, a period of, in round figures, thirteen years and eight months.

7 The present application is subject to the provisions of Sch 1 to the Crimes (Sentencing Procedure) Act 1999 NSW. Cll 3 and 7 of the schedule are particularly in point. A convenient method of dealing with the present application is to consider seriatim the requirements of cll 3 and 7.

8 Cl 3 provides relevantly and cl 7 provides relevantly:

“ 3 Matters for consideration by Supreme Court
(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.
7 Matters relating to exercise of Supreme Court’s functions
(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.
(2) The regulations may make provision for or with respect to reports referred to in subclause (1), including provisions relating to the matters to be dealt with in reports and the making of reports available to the Supreme Court.”

9 As to cl 3(1)(a), I need add nothing to what I have previously said on this topic. As to cl 3(1)(b) the relevant details are set out at p 5 of the report which was admitted as exhibit C2 in the present application. There are convictions recorded in England and in this State. The earliest of the English convictions dates back to 1960, and the latest of them dates back to 1974. They have, in my opinion, no substantial relevance for present purposes.

10 The convictions recorded in this state are:

10 11 12 13 31.3.87 13.4.87 21.5.87 7.4.89 Sydney District Court. Licensing Board Court. Court of Criminal Appeal. Waverley Local Court. Supply Heroin. Sell liquor without authority. Appeal on conviction for supply heroin on 31.3.87. Breach Apprehended Domestic Violence Order. 4 years Hard Labour. 2 years non parole period from 5.3.87 to 4.3.89. Fined $500. Appeal dismissed. Time on Appeal to count. Recognisance s 558 Self $1000 Good Behaviour 2 years.

The offences thus itemised as 10 and 13 are significant offences, the heroin supply offence particularly so.

11 There are recorded in the relevant Corrective Services records particulars of some offences committed by the applicant during his current imprisonment. They are, broadly speaking, infractions of prison discipline. They are not, in my opinion, of such a kind or number as to affect adversely the present application.

12 As to cl 7(1)(a): I have had regard to the contents of three reports made by the Serious Offenders’ Review Council. The reports are dated 16 October 1997, 10 February 1998 and 7 May 2002. The reports are respectively exhibits C1, C2 and C3 in the present application. I have had regard also to the contents of a psychiatric report dated 19 February 2002, being a report from Mr William Lucas, a well recognised forensic psychiatrist. The report forms part of exhibit A2 in the present application.

13 The report’s exhibits C1, C2 and C3 reveal that the applicant has not been a case management problem to those charged with his custody. The report’s exhibits C1 and C3 have as attachments copies of case management reports and notes. These reveal that the applicant has earned throughout his imprisonment remarkably consistent, and consistently high, assessments from his custodians. There have been, so to speak, occasional smudges on the record; but as I have said, the tenor overall of the record is notably favourable, and encouraging on the central issue of rehabilitation.

14 The reports of the Serious Offenders Review Council do not express a view, or make any specific recommendation, about the redetermination now sought. The most recent report, exhibit C3, does say however this:

“In the event that the Court sets a non-parole period in respect of the applicant’s sentence the Council will as soon as possible thereafter review the applicant’s classification and placement in the light of the Court’s decision.”

15 I infer from this comment that the Council does not see, from its official and experienced point of view, any serious impediment to the granting, in some appropriate particular form, of the present application.

16 Mr Lucas’ report was prepared specifically for use in connection with the present application. It suffices for present purposes to quote as follows from that report:

“ Diagnosis
Mr Kiely does not have a psychiatric diagnosis at present. Many years ago, when first in prison, he did suffer depression and there was an episode of self-injury. This was almost certainly due to circumstances and a reaction to imprisonment.
I suppose some would take the view that he has a personality disorder with antisocial traits. I tend to the view that Mr Kiely’s criminal conduct and how he has lived his life is more a product of his background - he grew up immediately after World War II in impoverished circumstances - than due to a personality disorder. However, it cannot be denied that he has a history of antisocial conduct. On the other hand, he appears to have sustained long term relationships and strongly is strongly attached to his son and grandson. He has a woman friend, he refers to her as a de facto, who has maintained their friendship over his long years in prison and she is willing to go to the United Kingdom with him when the time comes for deportation.
Opinion
Mr Kiely has applied for determination of the life sentence received for the murder of a young man. The circumstances and his conduct received strongly adverse comments from the trial judge and the Court of Criminal Appeal. It was a serious offence and the circumstances unusual, involving placing a young man on a rack and detaining him there for a lengthy period. Shortly after he was released he died. Mr Kiely accepts responsibility for his death and over the years appears to have achieved a degree of remorse.
Mr Kiely’s prison record is excellent. He is now fifty-six and will be deported on his release. Mr Kiely’s history suggests that he can be prepared for release with little difficulty. He has maintained relationships outside prison, does not require psychiatric or psychological treatment and believes he has the capacity to once again adapt to life in the community. Once his sentence is determined the SORC can move him through the prison system and provide what assistance is needed and prepare him for release. His record indicates there should be no problems moving him into a lower classification in a suitable prison when this is thought appropriate.
He is not suffering from a psychiatric disorder affecting the likelihood of re-offending. It is noted that the murder is his only conviction for a violent offence.”

17 As to cl 7(1)(b): it suffices to make two points. First, Mr Lucas has considered this point and has expressed a qualified professional judgment that there is no reason to apprehend any likelihood of re-offending; and secondly, that the most recent report of the Serious Offenders Review Council affirms that the Council, in reporting in connection with the present application, has had regard to the requirements of s 199 of the Crimes (Administration of Sentences) Act 1999 New South Wales, one such requirement being that the Council exercise its relevant functions in a way that has a particular regard “to the need to preserve the safety of the community”.

18 As to cl (7)(1)(c): I note that the applicant was born on 23 October 1945. He was aged, therefore, about forty-one years at the date of the murder and about forty-five years when sentenced. He is now aged about fifty-seven years.

19 Cl (7)(1)(d) does not apply to the present application.

20 As to cl (7)(1)(e): there are several matters to be noted.

21 First, there is the matter of remorse: that is to say, a genuine realisation of the enormity, both moral and legal, of what was done to Mr Soyka; and a concomitant acknowledgment of responsibility, moral as well as barely legal, for that conduct. This is always a difficult matter to assess. I am persuaded on balance that the applicant is remorseful in the senses to which I have referred. The applicant himself gave no evidence at the hearing of his application and I must rely therefore upon the experienced professional views of Mr Lucas, buttressed generally, as I think they are, by the prison reports.

22 Secondly, I have not overlooked the certificates, exhibit A3 in the present application.

23 Thirdly, I have had regard to the stated position of the Crown that the present application should not be simply dismissed. I refer in that connection to the contents, which I need not now repeat, of para 31 of my judgment in the application of Mr Lagopodis.

24 Fourthly, I have had regard to the principle of parity as affecting the respective cases of the applicant and of Mr Lagopodis. The original sentencing of the two offenders proceeded upon the basis that I could see, ultimately, no reason why they should not be dealt with as equally culpable. That remains my view. Any identifiable objective differences are not great and are in any event balanced out by the different subjective features, age not least among them.

25 Fifthly and finally, I wish to take up the following matter as noted in Mr Lucas’ report: “(The applicant) remarked that the sentencing judge had described him as evil and he wondered how this should be defined.” It is worth taking up briefly that point by way of affirming, one last time so far as this Court is concerned in dealing with this applicant, principles which bear directly upon the applicant’s rhetorical question to Mr Lucas:

“Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.” (per Lord Templeman in Regina v Brown & Ors (1994) 1AC 212 at 237)

26 Mr Kiely your application is granted. In place of the sentence of life imprisonment passed upon you on 7 September 1990, you are sentenced to imprisonment for a term of eighteen years with a non-parole period of fourteen years. The sentence and the non-parole period will commence on 17 April 1989. The earliest date on which you will be eligible for release to parole will be therefore 16 April 2003.

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Last Modified: 12/18/2002