Kleindyk v The Queen

Case [2016] WASCA 123


KLEINDYK -v- THE QUEEN [2016] WASCA 123



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2016] WASCA 123
THE COURT OF APPEAL (WA)
Case No:CACR:86/20154 MAY 2016
Coram:McLURE P
MAZZA JA
MITCHELL J
13/07/16
20Judgment Part:1 of 1
Result: Application to adduce additional evidence dismissed
Leave to appeal refused on proposed grounds 1 and 2
Appeal dismissed
B
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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
HEARD : 4 MAY 2016 DELIVERED : 13 JULY 2016 FILE NO/S : CACR 86 of 2015 BETWEEN : PAUL KLEINDYK
    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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Details
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.

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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