Kleindyk v The Queen

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.