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
Court: Supreme Court of New South Wales (Common Law Division)
Date: 6 March 2008
Judge: Michael Grove J
Background
The applicant was convicted of murder in May 1990, following a jury trial, for the killing of a victim in Dubbo in July 1988. The trial judge (Grove J, sitting again on this application) had imposed a sentence of penal servitude for life, finding no significant diminution in culpability. The life sentence dated from the applicant's arrest on 28 July 1988.
The applicant had previously sought redetermination of the life sentence under section 13A of the Sentencing Act 1989, but that application was refused in December 1998. The enactment of the Crimes (Sentencing Procedure) Act 1999 created a new statutory framework for existing life sentences under Schedule 4, and the present application proceeded under that regime.
The circumstances of the murder were serious. The applicant, who had been released on parole from prior convictions including kidnapping and armed robbery, came to reside with the victim through Anglican community connections. The prosecution case was that the applicant murdered the victim, forged a letter of resignation in the victim's name, used the victim's bank accounts and property, and attempted to create the appearance of a voluntary disappearance.
Legal Issues
- Whether the Supreme Court should set a specified (determinate) term of sentence in place of the existing life sentence under clause 4(1)(a) of Schedule 4 of the Crimes (Sentencing Procedure) Act 1999
- Whether, in the alternative, a non-parole period should be set under clause 4(1)(b) of Schedule 4, without replacing the life sentence with a determinate term
- What factors were relevant to the exercise of the court's discretion under Schedule 4, including the applicant's mental condition, history of violent behaviour in custody, and community safety
Decision
Grove J declined to substitute a determinate sentence for the existing life sentence. The judge took into account the gravity of the offence, the applicant's prior record of serious violent offending, his pattern of violent incidents in custody, and the nature of his mental condition, which remained stable only because the applicant could be compelled to continue medication in a custodial setting.
A particular concern was the applicant's apparently unpredictable changes in his acknowledgment of responsibility for the killing. The combination of these factors meant the court was not prepared to fix an end point for the sentence.
However, Grove J found that the third option available under clause 4(1)(b), fixing a non-parole period without altering the life sentence, was appropriate. His Honour noted that this mechanism is exclusive to these statutory proceedings and is not available at a conventional sentencing hearing following conviction. The non-parole period represents the minimum period of continued custody, not a guarantee of release. Actual release, if it were ever to occur, would require a further separate decision at the relevant time, including an assessment of the danger the applicant might then represent to the community.
Grove J assessed an appropriate non-parole period at 22 years, commencing from the date of the applicant's arrest on 28 July 1988. At the time of the application, the applicant had already been in continuous custody for over 19 years.
Orders Made
- The application to set a specified (determinate) term of sentence was refused.
- A non-parole period of 22 years was fixed, commencing 28 July 1988 and expiring 27 July 2010, in respect of the continuing sentence of penal servitude for life.
Key Takeaways
- Under clause 4(1) of Schedule 4 of the Crimes (Sentencing Procedure) Act 1999, the Supreme Court has three distinct options when dealing with an existing life sentence: it may set a determinate term with a non-parole period, decline to set a determinate term but fix a non-parole period, or decline to set either.
- Fixing a non-parole period without imposing a determinate sentence is a remedy available exclusively in these Schedule 4 proceedings; it is not a tool available to a sentencing court at a conventional first-instance sentencing.
- Expiry of a non-parole period set under Schedule 4 does not result in automatic release. It marks the earliest point of eligibility, and any actual release requires a further separate determination, including a community safety assessment.
- The applicant's mental condition, history of violence in and out of custody, and inconsistent acceptance of responsibility for the offence were all material factors weighing against the substitution of a determinate sentence.
- A prior refusal of a redetermination application under the earlier Sentencing Act 1989 regime does not preclude a fresh application under the later Schedule 4 framework, which operates as a distinct statutory regime.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Schedule 4 (the governing framework for this application)
- Sentencing Act 1989 (NSW), s 13A (the earlier redetermination regime under which the 1998 application was brought)
Cases:
No cases were cited in the portions of the judgment provided.