KLEINDYK -v- THE QUEEN [2016] WASCA 123
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 123 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:86/2015 | 4 MAY 2016 | |
| Coram: | McLURE P MAZZA JA MITCHELL J | 13/07/16 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application to adduce additional evidence dismissed Leave to appeal refused on proposed grounds 1 and 2 Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PAUL KLEINDYK THE QUEEN |
Catchwords: | Criminal law Federal drug offences Trafficking in a marketable quantity of methamphetamine Attempting to traffic in a commercial quantity of methamphetamine Trafficking in a commercial quantity of MDMA Trafficking in a trafficable quantity of cocaine Total effective sentence of 18 years' imprisonment Sentencing factors Personal and general deterrence Part IB Crimes Act 1914 (Cth) Section 16A(2)(p) Crimes Act 1914 (Cth) Common law application of exceptional hardship to family and dependants Whether excessive hardship to family can be a personal matter of secondary importance in sentencing Impact of sentence on autistic son of appellant |
Legislation: | Crimes Act 1914 (Cth), pt IB Criminal Appeals Act 2004 (WA), s 27(3), s 40(1)(e), s 41(4)(a) Criminal Code (Cth), s 11.1, s 302.2(1), s 302.3(1), s 302.4(1), s 400.9(1) |
Case References: | Al Jrood v The State of Western Australia [2016] WASCA 73 Burns v The Queen (1994) 71 A Crim R 450 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Markovic v The Queen [2010] VSCA 105; (2010) 30 VR 589 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nguyen v The Queen [2001] WASCA 72; (2001) 118 A Crim R 519 R v Kleindyk [2015] WASCSR 78 R v Lee [2013] WASCA 216 R v Ng [2012] WASCA 180 R v Sinclair (1990) 51 A Crim R 418; (1990) 108 FLR 370 R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265 Rimington v The State of Western Australia [2015] WASCA 102 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 The State of Western Australia v Baldini [2015] WASCA 39 The State of Western Australia v Chapman [2012] WASCA 203 Trompler v The State of Western Australia [2008] WASCA 265 Vagh v The State of Western Australia [2007] WASCA 17 Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KLEINDYK -v- THE QUEEN [2016] WASCA 123 CORAM : McLURE P
- MAZZA JA
MITCHELL J
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JENKINS J
File No : INS 19 of 2015
Catchwords:
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- AGLC
- Kleindyk v The Queen [2016] WASCA 123
- Case
- [2016] WASCA 123
- Decision Date
CaseChat Overview and Summary
In the case of Kleindyk v The Queen, the appellant was convicted of multiple drug trafficking offences, including trafficking in a marketable quantity of methamphetamine, attempting to traffic in a commercial quantity of methamphetamine, trafficking in a commercial quantity of MDMA, and trafficking in a trafficable quantity of cocaine. The appellant was sentenced to a total effective term of 18 years' imprisonment. The appellant appealed against the sentence on the grounds that it was excessive and disproportionate, and that it would cause exceptional hardship to his family, including his autistic son. The appeal was lodged in the High Court of Australia.
The central legal issues in the appeal were whether the sentence imposed was excessive and disproportionate, and whether the exceptional hardship that would be caused to the appellant's family could be considered a personal matter of secondary importance in sentencing. The court had to determine if the sentence was appropriate in light of the need for personal and general deterrence, and whether the impact of the sentence on the appellant's autistic son should be taken into account as a factor in determining the appropriate sentence.
The High Court found that the sentence was not excessive or disproportionate, and that the exceptional hardship to the appellant's family could not be considered a personal matter of secondary importance in sentencing. The court held that the impact of the sentence on the appellant's autistic son was a relevant factor to be considered in determining the appropriate sentence. However, the court found that the sentence was proportionate to the seriousness of the offences and the need for personal and general deterrence. The appeal was dismissed, and the application to adduce additional evidence and leave to appeal were refused.
The High Court dismissed the appeal, affirmed the sentence of 18 years' imprisonment, and refused the application to adduce additional evidence and leave to appeal on the proposed grounds.
The central legal issues in the appeal were whether the sentence imposed was excessive and disproportionate, and whether the exceptional hardship that would be caused to the appellant's family could be considered a personal matter of secondary importance in sentencing. The court had to determine if the sentence was appropriate in light of the need for personal and general deterrence, and whether the impact of the sentence on the appellant's autistic son should be taken into account as a factor in determining the appropriate sentence.
The High Court found that the sentence was not excessive or disproportionate, and that the exceptional hardship to the appellant's family could not be considered a personal matter of secondary importance in sentencing. The court held that the impact of the sentence on the appellant's autistic son was a relevant factor to be considered in determining the appropriate sentence. However, the court found that the sentence was proportionate to the seriousness of the offences and the need for personal and general deterrence. The appeal was dismissed, and the application to adduce additional evidence and leave to appeal were refused.
The High Court dismissed the appeal, affirmed the sentence of 18 years' imprisonment, and refused the application to adduce additional evidence and leave to appeal on the proposed grounds.
Orders
Orders of the court
Application to adduce additional evidence dismissed
Leave to appeal refused on proposed grounds 1 and 2
Appeal dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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