Kleindyk v The Queen - [2018] HCATrans 29

[2018] HCATrans 029

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P45 of 2016

B e t w e e n -
PAUL KLEINDYK
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 16 FEBRUARY 2018, AT 1.18 PM

MR M.D. HOWARD, SC: May it please the Court, I appear with my learned friends, MR A. CHHABRA and MS P.A. HONEY, for the applicant. (instructed by The Law Practice)

MS S.M. McNAUGHTON, SC: May it please the Court, I appear with my learned friend, MS J.M. SINGLE, for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

NETTLE J: Mr Howard.

MR HOWARD: May it please the Court. The applicant seeks to agitate only one question this morning. The question is whether the principle expressed, both by the Court of Appeal and the sentencing judge – that is, that primacy was to be given to general deterrence – is correct as a matter of law.

It is contended that that principle so stated is not mandated by the Crimes Act and it is not consistent with clear statements in this Court in a number of cases, but we would reference Veen (No 2) 164 CLR 465 and the passage well known at paragraph 476 in the joint judgment; and, secondly, the decision in Muldrock 244 CLR 120, at paragraph 20, which is a judgment of all seven Judges of this Court.

The sentencing judge here effectively followed a principle which was endorsed clearly by at least their Honours Justices Mazza and Mitchell that as a matter of principle, matters personal to an offender were of secondary importance. Your Honours will see how the sentencing judge dealt with that in the application book at page 61. At the foot of page 60, your Honours will see paragraph 64 and then over on to application book 61, paragraph 64:

General and personal deterrence are extremely important factors –

Paragraph 65:

Matters personal to an offender . . . are of secondary importance.

That is dealt with in the Court of Appeal. It is also dealt with by the learned President but it is dealt with more expressly and at greater length by his Honour Justice Mazza. If I take your Honours to application book 99, his Honour deals with it in paragraph 29, which starts on the previous page. He deals with it by citing the decision of this Court in Wong, again which is very often cited.

The quotation at about line 35 or so, which is taken from paragraph 60 of the joint judgment in Wong is, we would say, different from what is provided for in the Sentencing Act and it is different from what is the correct approach, we would submit, as identified by the Court in Veen (No 2) and reaffirmed by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] HCATrans 29
Decision Date

CaseChat Overview and Summary

The applicant, Mr Kleindyk, sought special leave to appeal to the High Court of Australia against a decision of the Court of Appeal. The central dispute concerned the principle applied by the sentencing judge and the Court of Appeal, which the applicant contended gave undue primacy to general deterrence over other sentencing considerations.

The legal issue before the High Court was whether the principle that general deterrence must be given primacy in sentencing, particularly in serious drug cases, is correct as a matter of law. The applicant argued that this principle was not mandated by the relevant Commonwealth legislation, the Crimes Act, and was inconsistent with previous High Court pronouncements in cases such as *Veen (No 2)* and *Muldrock*. Specifically, the applicant contended that the sentencing judge and the Court of Appeal had erred by elevating general deterrence to a primary sentencing factor, making personal circumstances secondary, and that this approach was not supported by the statutory framework or High Court authority.

The applicant's counsel submitted that while sentencing judges may, in individual cases, give greater weight to general deterrence, it was an error of principle to establish it as an *a priori* ranking above all other considerations. Reliance was placed on *Muldrock*, which indicated that sentencing legislation does not rank sentencing factors in order of priority. The applicant argued that the Court of Appeal's reliance on certain paragraphs from the High Court's decision in *Wong* was a misinterpretation, as other parts of that judgment suggested a more nuanced approach to balancing sentencing factors. The High Court, however, was not persuaded that the proposed grounds of appeal had sufficient prospects of success.

Special leave to appeal was refused, and the application was dismissed.

Orders