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

Copyright in the High Court of Australia

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 this Court unanimously in Muldrock.

GORDON J:   Mr Howard, is it right for President McLure to record, as she does on page 90, that there was no contention below that the sentence was manifestly excessive?

MR HOWARD:   That is correct, your Honour.  The two matters that were put below your Honours will see most easily at application book 97 in paragraph 26.  That is what was proposed ground 1 and then proposed ground 2 your Honours will find on application book 100 at paragraph 36.  We contend that what occurred here is the sort of error which raises a question of law or principle of general importance so that it does not fall foul of what this Court has said repeatedly on special leave applications in cases such as Lowe and others. 

This is, we say, a point of principle.  It occurs in the context of Commonwealth sentencing legislation, in the Crimes Act, but it also has a significance to sentencing that is done within State regimes because the question of whether in some certain cases it is permissible as a matter of principle to say that general deterrence must be the primary sentencing factor and that everything else comes after that, that is, in our submission, an error.

What occurred in this case was the elevation or the continuation of the elevation of that proposition to one of principle which must be followed by a sentencing judge in all serious drug cases.  We accept, as we must, that in any particular case a sentencing judge may give greater or lesser weight to deterrence than, for example, factors which are personal to the offender. 

If the sentencing judge had done that then we would not be able to make the complaint that we do.  But what occurred both at sentencing as in the Court of Appeal is the elevation of this general deterrence because it is a serious drug offence to a matter of principle.  One would imagine that the consequence of that would be that if the judge had departed from that the Court of Appeal would have said that she had erred as a matter of principle.

The passage that his Honour Justice Mazza relied on from Wong in this case – there are two paragraphs in Wong which are regularly cited.  There is paragraph 60, which his Honour Justice Mazza quoted from, but in any number of other cases around the country, citation of paragraph 60 is often accompanied by or substituted for a citation of paragraph 64, and those two paragraphs, which are cited in any number of cases at the State level, appear to give support to what was done by the Court of Appeal below.

What we say in relation to those is that there is a real question as to whether it is appropriate to extract the statements in paragraphs 60 and 64 from the judgment of their Honours Justices Gaudron, Gummow and Hayne without, for example, looking at what is in paragraph 71 in that judgment.  If your Honours have the report, at page 610 in that judgment, at the top of the page still within paragraph 71 – this is within the same judgment as the one that is often cited – coming down perhaps 10 or so lines, your Honours will see the sentence that starts “What is notably”.

GORDON J:   I am sorry, what paragraph number is it, Mr Howard?  Where are you reading from?

MR HOWARD:   I am sorry, your Honour, it is 71 but it is at the top of page 610 of the report.  As I say, it is 10 or so lines down, the sentence that starts:

What is notably absent from s 16A is any guidance about the accommodation that is to be made between these various factors or between these factors and the general requirement that the sentence be of a severity appropriate in all the circumstances of the offence.

Within the same judgment there is an indication that what is said in paragraphs 60 and 64 may not have been intended by their Honours to have been taken as permission, as it were, for the approach which has been taken.

NETTLE J:   Why would one not consider that in a case of a serious drug offence general deterrence is likely to be the principal consideration or at least the most important?

MR HOWARD:   When one reviews it, one can see that in the cases that the judges generally do follow that on an individual basis, but it is different from, in our submission, a priori ranking general deterrence above all others.  That is the point of principle.

NETTLE J:   For example, you would say there might be cases of trafficking in a large commercial quantity of a prohibited substance in which personal circumstances would trump general deterrence?

MR HOWARD:   It may be in an individual case that that was the case.  It may not be easy to imagine it.

NETTLE J:   I am finding it difficult to do so, I must say. 

MR HOWARD:   I can accept the difficulty that your Honour has.  When the matter, albeit in a different context, came back before the Court in Muldrock what was noted, albeit about the New South Wales sentencing legislation at paragraph 20 on which we rely, is that within the purposes of sentencing and, we would say, the factors of sentencing to be taken into account by the statute, there is no attempt to rank them in order of priority. 

When one looks at the relevant section, 16A, of the Crimes Act, both as it was when the applicant was sentenced and as it is now, general deterrence was a matter which now expressly has to be taken into account.  Back when the applicant was sentenced it was something that should be taken into account because of the application of common law principles, et cetera, but there is no ranking within section 16A of the various factors. 

That is the point.  It is one thing to say her Honour Justice Jenkins was entitled to do this on an individual case.  It is quite another thing to say general deterrence must be the primary consideration and everything else is secondary.  It is that that we say is the error of principle, the error of law.  It has an impact in the Crimes Act, but, as can be seen from the judgments of her Honour the President and his Honour Justice Mazza, it is also of significance in State sentencing regimes as well. 

We say the error stems from taking paragraphs 60 and 64 from the judgment of three of the Judges in Wong and giving it almost a statutory significance, which we say is unfounded and wrong as a matter of law.  There are other matters articulated in the written submissions.  I do not intend to address the Court on those.  May it please the Court.

NETTLE J:   Thank you, Mr Howard.  We need not hear from you, Madam Crown, thank you.

The Court is not persuaded that any of the proposed grounds of appeal sought to be advanced would enjoy sufficient prospects of success to warrant a grant of special leave to appeal.  The application is dismissed.

AT 1.33 PM THE MATTER WAS CONCLUDED