Regina v Michael Kiely [2002] NSWSC 1222

New South Wales Supreme Court

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.