In the matter of an Application by Martin Ludwig Kluska pursuant to Schedule 4 of the Crimes (Sentencing Procedure) Act 1999 [2008] NSWSC 171

New South Wales Supreme Court

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 APPLICATION No 03/2003

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. ...