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[2006] VSC 78
plaintiff. Kuster was sentenced to 22 years’ imprisonment for murder and three years for arson, to be served concurrently, with a minimum term of 17 years and six months before parole eligibility; he was...
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The judgment records the sentence imposed after a jury found Mark Kuster guilty of murdering Leo Filippone and setting fire to his home the next day. The judge considered the murder violent and the later fire an attempt to conceal it. The judge also considered Kuster's personal history, prior conviction, limited but possible prospects of rehabilitation, and lack of demonstrable remorse or insight. Kuster received 22 years for murder and three years for arson, to run at the same time, with a minimum term of 17 years and six months before parole eligibility. The remarks do not establish a general legal rule or discuss other cases.
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2,011 words · generated 28/09/2026
R v Kuster [2006] VSC 78 is a sentencing judgment delivered by King J in the Supreme Court of Victoria on 7 March 2006. It followed a jury's convictions of Mark Andrew Kuster for murdering Leo Filippone and committing arson at Filippone's home. The judge records that the murder occurred at Newborough on 27 January 2004 and the fire was set on 28 January 2004 (paragraphs 1, 4).
Kuster, his de facto partner Christina Krajina, and their son had stayed for several days at Filippone's home. Kuster had known Filippone for years and the judge described them as friends. Kuster had helped with work around the home, and Filippone had given him advice about investment and property (paragraph 2). The judgment says that relations during the stay included both pleasant times and disagreements, but that it was difficult to determine reliably what had happened over those few days (paragraph 3).
Krajina left for the city with the child on 27 January, the day Filippone was murdered. Filippone was later found in his bed after a fire at the home had been extinguished. His body had been extensively burnt, but the autopsy showed that he died from stab wounds and blows to the head, not from the fire (paragraph 4).
The judge accepted evidence that, on 31 January, Kuster told Krajina he had killed Filippone and returned the following night to set fire to the premises. The judge also recounted Jenna Roberts' evidence that Kuster had said at Moe railway station that he lit the fire and had killed one person (paragraph 5). Kuster denied involvement at trial, and the jury rejected that account. The judge accepted Krajina's evidence of an admission but expressed substantial doubt about its detail. The judge rejected Krajina's explanations of possible motives as untruthful, unreliable or inaccurate, and was unable to identify a motive for the crimes (paragraphs 5, 7).
The sentencing remarks describe a serious inconsistency worth noting. Paragraph 1 says Kuster was convicted by a jury, and paragraph 9 says he maintained his innocence at trial and on the plea. Paragraph 16, however, refers to “your plea of guilty” among matters considered. The judgment does not explain this wording. On the face of the remarks, a reader should not resolve the discrepancy by assuming a guilty plea was entered. The jury-conviction account and the repeated references to Kuster maintaining innocence are also part of the text.
The judge treated the violence and the attempt to conceal the murder as central features of the offending. Kuster was physically much larger than Filippone, who was smaller and legally blind. The judge found that Kuster stabbed Filippone several times and struck his head with a heavy object, probably a brick or similar item. The judge described the murder as vicious and noted that Kuster removed evidence and later set fire to the home under cover of darkness (paragraph 8).
The judge found that the fire was intended to make the death look accidental. Initially, that was what the death was thought to be, until the autopsy was performed (paragraph 8). The remarks do not find that the murder was heavily pre-planned. The judge said it was not possible to say whether it was spontaneous or influenced by the deceased's conduct, and expressly left the motive unresolved.
Other considerations included the impact on Filippone's former partner and their son. The judge described Filippone as having a close, caring relationship with his severely disabled son, and acknowledged that the child would have to be raised without support from his father (paragraph 6). The judge said the victim impact statements had been read and taken into account.
The judge identified aggravating circumstances as the violent murder, the use of considerable force and two types of weapon, and the attempt the next day to cover up the crime by arson (paragraph 16). The judge also considered lack of demonstrable remorse and insight, while expressly saying that these were matters for which there could be no mitigating aspect. The remarks identified a need for specific deterrence as well as general deterrence (paragraphs 9, 15–16).
The judge also considered Kuster's age, family support, affection for his son and prior convictions. These were identified as mitigating circumstances, together with the fact that he did not have very significant prior convictions for violence (paragraph 15). The judge assessed rehabilitation prospects as limited, but not hopeless. The possibility of rehabilitation was linked to Kuster developing insight and empathy for victims in the future (paragraphs 17–18).
The judge declared Kuster a serious violent offender under s. 6C of the Sentencing Act, identifying a 26 July 2000 conviction for threat to kill as the relevant prior conviction. Under s. 6D, the judge concluded that neither cumulative sentences nor a disproportionate sentence was necessary to ensure public protection (paragraph 19). These are the statutory provisions and conclusions as described in the sentencing remarks; the judgment does not reproduce the statutory text.
This judgment does not announce a change in the law, set out a new sentencing test, or identify a dispute about the meaning of a statutory provision. It is best read as an individual sentencing decision applying the provisions the judge names to the facts before the court. The text does not cite or analyse earlier judicial decisions, so there is no stated line of precedent from which to describe a “before” and “after” position.
The statutory matters expressly mentioned are ss. 6C and 6D of the Sentencing Act, concerning, respectively, the serious violent offender declaration and the question of whether cumulative sentences or a disproportionate sentence were necessary for public protection, as the judge describes them (paragraph 19). The remarks do not provide the sections' full language, discuss their legislative history, or explain how they interact with other statutory provisions.
The most specific sentencing reasoning concerns the relationship between the two offences. Although the murder and arson occurred on separate days, the judge considered them part of one set of circumstances and a “continuing enterprise” (paragraph 19). That conclusion supported concurrent sentences. The judgment does not present this as a general rule for all offences committed on different days. Its reasoning is tied to the judge's characterisation of these particular offences.
The judgment therefore offers a record of the factors considered in Kuster's sentence, not a general statement that later courts must apply in the same way. Any broader account of the law before or after this decision, or of amendments to the Sentencing Act, would require legal sources beyond the judgment supplied here.
At paragraph 8, the judge said: “This crime must be described as vicious.” In context, that characterisation followed findings about the repeated stabbing, the heavy blows to Filippone's head, the difference in physical size, and the later fire. In plain English, the judge regarded the violence as a particularly serious feature of the offending.
Also in paragraph 8, the judge said: “Clearly your intention was to attempt to make the death look accidental.” This is the judge's conclusion about the purpose of setting the fire. The remarks say that the death was initially thought to be accidental until the autopsy revealed the injuries. The passage does not say that the fire succeeded in concealing the murder; it explains the judge's view of Kuster's intention.
At paragraph 18, the judge said that Kuster's rehabilitation prospects were “quite limited” but that he was not “without any hope of rehabilitation at some time in the future.” In plain English, the judge did not consider rehabilitation likely on the information then available, but did not rule out future progress. The judge linked that possibility to Kuster gaining insight and empathy for victims.
At paragraph 19, the judge said the murder and arson “ought to be treated as a continuing enterprise.” In plain English, the judge regarded the offences as sufficiently connected, despite the day between them, to impose concurrent rather than consecutive sentences. The judge then imposed 22 years for murder and three years for arson, both running at the same time.
The judgment is not framed as a test identifying fact patterns that “trigger” a legal rule. Its direct relevance is to sentencing after convictions for a violent murder followed by arson which the sentencing judge found was intended to make the death appear accidental. The judge also considered the relationship between offences separated by a day, but arising from what the judge viewed as one set of circumstances and a continuing enterprise (paragraphs 8, 19).
Features material to the judge's assessment included the use of repeated stabbing and heavy blows, the victim's physical vulnerability, the later destruction of the crime scene by fire, the absence of demonstrable remorse and insight, the offender's prior conviction, and the available information about rehabilitation and personal circumstances (paragraphs 8, 13–18). These features explain the assessment in this case; the judgment does not say that any one of them independently determines a sentence.
For practitioners, the remarks can be read as an example of how a sentencing judge recorded offence seriousness, personal factors, deterrence, rehabilitation and the relationship between connected offences. It should not be treated as establishing that another case with superficially similar facts must receive the same sentence. The judgment itself provides no general formula or sentencing range.
The supplied judgment contains no discussion of later cases, and no later judgments or other legal sources have been provided. It is therefore not possible on this record to say whether later courts followed, distinguished, applied, criticised or otherwise treated R v Kuster.
The absence of precedent relationships in this analysis does not mean that no later court has referred to the case. It means only that the supplied text does not establish any such treatment. A reliable account of subsequent citation history would require access to later decisions or a verified citator search, neither of which is included in the materials here.
The judgment itself does not cite other cases. Its reasoning is expressed through findings about the offending and the offender, together with references to ss. 6C and 6D and s. 18 of the Sentencing Act (paragraph 19). It would be inaccurate to attribute a broader precedent relationship to it without additional sources.
The judgment leaves the motive unresolved. The judge said that no motive could be determined and rejected the explanations given by Krajina as lacking truthfulness, reliability or accuracy (paragraph 7). The remarks also do not resolve whether the murder was spontaneous or influenced by the deceased's conduct, or how it developed, beyond finding that it did not appear heavily pre-planned (paragraph 8).
The discrepancy about a “plea of guilty” in paragraph 16 remains unexplained. Paragraph 1 identifies a jury conviction, and paragraphs 5 and 9 record Kuster's denial and continued maintenance of innocence. The sentencing remarks do not clarify what paragraph 16 intended to refer to. That textual uncertainty should remain visible in any account of the judgment.
The relationship between the offences is described as a continuing enterprise, but the judgment does not set out a general framework for deciding when separate offences should be treated that way. It also does not explain the statutory tests in ss. 6C and 6D beyond the judge's case-specific conclusion. Further questions about statutory interpretation, later amendments or later judicial treatment cannot be answered from these remarks alone.
Finally, the court recorded a minimum term of 17 years and six months before parole eligibility, 692 days already served, and forfeiture and retention orders (paragraph 19). The sentencing remarks do not explain the details of the forfeiture order or identify the nature of item 464ZF, beyond recording the retention order. Those details cannot be supplied from this text.
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1 Mark Andrew Kuster, you have been convicted by a jury of the murder of Leo Filippone at Newborough on 27 January 2004 and the arson of his premises on 28 January 2004. The trial was conducted by your counsel on the basis that you were not the person who inflicted any injuries upon the deceased or set the fire.
2 The circumstances of the offenced are that you and your de facto, Christina Krajina, with whom you have a relatively volatile relationship, together with your son, Shayne, had stayed a few days at the deceased man's home in Newborough. You had known the deceased for some years and would best be described as friends. The deceased gave you advice about investment and property and you helped out with work around his home. You and Ms Krajina and your son stayed with the deceased because the hot water unit in your home was not working at that stage and it had been arranged for Ms Krajina to come and stay with you for a few days and to bring the child with her.
3 It is hard to say reliably what occurred in those few days. It appeared that there were some pleasant times and some disagreements during that time between Ms Krajina and Mr Filippone. At the conclusion of the time in Newborough, Ms Krajina drove back to the city with your son and went to work. This was on 27 January 2004, the day upon which Leo Filippone was murdered. She had arrived at his premises on 22 January.
4 On the evening of 28 January 2004, there was a fire at the home of the deceased and after the fire fighters had finally extinguished the fire the body of Leo Filippone was discovered in his bed in the front bedroom. The body had been extensively burnt. It was discovered at autopsy that the deceased had been stabbed and bashed around the head prior to his death and he died from these injuries rather than the fire.
5 On 31 January you travelled by rail to Melbourne to meet Ms Krajina and after she had picked you up from the railway station you ultimately told her that you had killed the deceased on 27 January and then went back the next night and set fire to the premises. I accept that evidence from Ms Krajina although I have quite some doubt as to the detail of what you told her had occurred. Whilst waiting to travel to Melbourne earlier that day you started talking to a girl on the Moe railway station, Ms Jenna Roberts, and she gave evidence that you told her that you had lit the fire at Naracan Drive in Newborough and that you had killed one person and there was another one that you had to get. You gave evidence on oath and denied any involvement in the murder or the arson. The jury clearly did not accept your evidence.
6 Leo Filippone was a relatively lonely person who did not appear to have many friends but he had a very caring and loving relationship with his quite severely disabled son. That relationship can no longer exist and leaves Mr Filippone's ex-partner to raise their child without any support from a co-parent. I have read the victim impact statements in this matter which are Exhibit 1 on the plea and can appreciate the difficulties that lie ahead for Ms Birkett and her son, Josh, and I take those matters into account when imposing sentence.
7 I am unable to determine a motive for this crime in any way. Ms Krajina gave evidence of certain motivating factors but I do not accept the truthfulness, reliability or accuracy of Ms Krajina on any of these points. She is a woman who clearly loves you very much and would do and say anything to help you including confessing to the murder itself. Her evidence about hit squads and Mr Filippone killing his son and Ms Krajina and Shayne are really too fantastic to have any credibility.
8 What I am able to say is that you are physically a very large man and the evidence is that Mr Filippone was smaller than you and legally blind. This crime must be described as vicious. You stabbed Mr Filippone a number of times and then bashed his head with a heavy object, in all probability a brick or similar object. You sat with him, then returned to your home, made sure that you had removed all evidence relating to the deceased and then returned to his home the next night under cover of darkness and set fire to his home. Clearly your intention was to attempt to make the death look accidental which, initially, it was thought to be until the autopsy was performed. As I say, the crime remains motiveless but I can determine, as I have, that it has a degree of viciousness about it. I cannot say whether it was spontaneous or in any way influenced by the conduct of the deceased. It does not appear to have been heavily pre-planned.
9 You have expressed no remorse for the murder of Leo Filippone and demonstrated none either during the trial or on the plea where you maintained your innocence of this crime. It would not appear that Leo Filippone was a danger, a threat or a menace to anyone and he was living a relatively harmless semi-anonymous existence in Newborough and had a limited circle of friends.
10 In relation to your personal circumstances, you are now aged 38 having been born on 13 September 1967. Your counsel briefly stated some of your personal history but more is able to be gleaned from the report of Ian Joblin, forensic psychologist, which is Exhibit 2 on the plea. Your parents are still alive and reside in Little River. They are clearly hardworking and decent people who have attended this trial on a fairly regular basis and done what they can to support you. You have three older brothers aged 44, 42 and 40, none of whom have been in any trouble with the police. Your father is a retired meatworker. You were initially raised in Sunshine till about the age of seven when the family moved to Lara. You attended Sunshine State School then Lara State School followed by Corio Technical School leaving at the end of Year 10 when you were aged 16. You then went to the Geelong Meat Works and remained there for seven years and from that time on had a number of other jobs and you appear to have been mainly employed until more recent times.
11 You met Ms Krajina when you were 18 and she was aged 20 at a work social function. Ms Krajina bought a house in Werribee some years later and you left home and moved in with her at about 25 years of age. Your son, Shayne, was born in 1996. Ms Krajina was diagnosed in approximately 2002 with schizophrenia. The relationship with Ms Krajina was, as I said, a volatile one. It appears almost all your assault matters and breach of intervention order relate to that relationship. That does not lessen the seriousness of those matters, it merely puts them in context.
12 You have been a serious cannabis user in excess of 20 years and like most people in that category, you believe that it does you no harm. You have also been involved in usage of heroin and amphetamine although I have absolutely no specific detail relating to that. But nothing has been put before me to suggest that either alcohol or drugs had anything to do with this murder.
13 Your other prior convictions that are noted relate to possession, using, trafficking of hashish and cannabis which is consistent with the information that you provided to Mr Joblin about your cannabis usage. You have a number of prior convictions of which some are relevant. An assault by kicking in August 1994 at the Magistrates' Court at Sunshine where you were fined $500. Portland Magistrates' Court in August 1999, fined $300 for breach of an intervention order and July 2000, causing injury intentionally and threat to kill for which you were given a four months' suspended sentence, wholly suspended for two years. You breached that sentence and were directed to serve some 14 days' imprisonment. Of some significance but in a different way is the prior conviction relating to an indecent act with a child under 16 for which you were released on an intensive corrections order in July 1998. This offence related to the licking of the vagina and anus of a three year old niece of Ms Krajina and its relevance becomes apparent when dealing with the psychological assessment tendered on your behalf to the court.
14 In his report to the court Mr Joblin stated under the heading, assessment, at p.4 of the report:
"In my opinion, Mr Kuster has a number of problems. He is not to be considered at all above average in intellect, however, he is also not to be considered at all retarded. He is not a particularly sophisticated man, he is not, in my opinion, psychotic. Mr Kuster would not consider anything negative about his family and indicated that they are all good people with no history of attention from the police or drug or alcohol abuse. He could not clarify why he deteriorated into drug and alcohol abuse and attention from police as reflected in his prior convictions.
At times during my interview with him, Mr Kuster became petulant and at other times he was polite and co-operative. Mr Kuster obviously experiences mood swings. He acknowledges the difficulties he has with regard to the criminal justice system. He believes that whatever he does or whatever is said will be of no relevance, including my report, as his fate has been sealed already. As indicated, he was emphatic that he had nothing to do with the death of the deceased or the fire. He described the witness that he met at the Moe railway station in negative terms that would be entirely consistent with this presentation.
In my opinion, Mr Kuster has symptoms of a personality disorder and I have no doubt that they are reasonably severe and have been a problem for Mr Kuster for some years. His mood swings, limited insight and somewhat self-righteous attitude are all symptoms of such a disorder. He believes, for example, with regard to his prior offences that he was the victim and that certainly he is a victim in these charges. One notes his history of drug and alcohol use, one notes the sexual offence with a four year old girl. The relationship he reported with Ms Krajina as reflected in his prior offending history is a concern. He reported that she takes up all the visits now and his family does not visit at all.
Mr Kuster's emphatic denial of the current charges was a matter of considerable sensitivity during my interview with him. As indicated at times, he became loud, verbose and petulant. However, when discussing some aspects of his history he became more placid. As indicated, the main issue with Mr Kuster is the presentation of a personality disorder. He was emphatic that the charges for which he appeared before the Supreme Court could not have occurred when he was in a drugged or drunken state and that he simply had nothing to do with them."
15 There is nothing in the material that demonstrates any remorse or insight. In fact, as outlined above, the material is to the contrary with a total denial and a feeling of you being the victim in this matter. The circumstances of mitigation are that you are still only 38 years of age, you have a caring and decent family who support you, you have a son for whom you have a great deal of affection and you do not have very significant prior convictions for violence.
16 The circumstances of aggravation are that it was a violent murder using considerable force, two types of weapon and the fact that there was an attempt made a day later to cover up the crime by committing another crime, that of arson. There are other facts that have to be considered but they are not matters in aggravation nor matters in mitigation but they are matters for which there can be no mitigatory aspect. They include your plea of guilty, your lack of demonstrable remorse, your lack of insight. All of the factors to which I have earlier referred indicate that there is a need for specific deterrence as well as the obvious need for general deterrence.
17 Your counsel submitted that I should act upon the basis that you had some prospects for rehabilitation and the sentence I impose should reflect those prospects. In discussion with counsel I asked him to highlight those matters that demonstrate anything relating to a prospect of rehabilitation. The only matter that he was able to point out was that you had not murdered a complete stranger. I do not believe that is of assistance in determining your prospects of rehabilitation.
18 In relation to the issue of rehabilitation, I find that your prospects are quite limited but I do not find that you are without any hope of rehabilitation at some time in the future. That will require you gaining some insight and possible empathy in relation to the victims of your offending and I have no reason to believe that may not occur at some stage in the future.
19 By virtue of your prior conviction you are to be declared a serious violent offender pursuant to s. 6C of the Sentencing Act. The relative prior conviction is the one on 26 July 2000, one count of threat to kill. In considering s. 6D of the , I have concluded that it is not necessary either to cumulative the sentences I impose or apply a disproportionate sentence to ensure the protection of the public. Taking all of the matters to which I have referred into account for the murder of Leo Filippone you are sentenced to be imprisoned for 22 years. For the arson of the premises at Naracan Drive, you are sentenced to be imprisoned for three years. These offences arose out of one set of circumstances and although separated by a day in time ought to be treated as a continuing enterprise. Accordingly, I direct that the sentence imposed on the count of arson be served concurrently with the sentence imposed on the count of murder. I fix a minimum of 17 years and six months before you become eligible for parole. Pursuant to of the , I declare that the time you have spent in custody in relation to these proceedings is --- Mr Kayser, can you assist me there? We have 692.
HER HONOUR: I declare that the time you have spent in custody in relation to these proceedings is 692 days inclusive of today and I direct that such time be reckoned as a period of imprisonment already served under this sentence.
MR KAYSER: If Your Honour pleases. Retention order.
HER HONOUR: Yes, sorry, the retention order in respect of 464ZF. Thank you.
R
Kuster [2006] VSC 78
Kuster was sentenced to 22 years’ imprisonment for murder and three years for arson, to be served concurrently, with a minimum term of 17 years and six months before parole eligibility; he was declared a serious violent offender, credited with 692 days already served, and forfeiture and retention orders were made.