Klosowski v The Queen

Case [2021] SASCA 85

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

KLOSOWSKI v THE QUEEN

[2021] SASCA 85

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Livesey)

26 August 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD

The appellant was convicted of two counts of murder by fatally shooting his son and his son’s girlfriend after the appellant, in a state of intoxication, became enraged after a domestic argument.

On 1 April 2021, the appellant was sentenced to life imprisonment for each count of murder.  The sentencing Judge identified that a starting point of 40 years non-parole was appropriate, which was reduced to 34 years on account of the appellant’s early guilty pleas. This represented a 15 per cent reduction.

The appellant appeals against the sentence on the basis that the non-parole period is manifestly excessive. In particular, the appellant contends that the starting point of 40 years was too high, and the 15 per cent reduction was inadequate in circumstances where the appellant was entitled to a reduction of up to 40 per cent under the Sentencing Act 2017 (SA).

Held per Kelly P and Livesey JA (Doyle JA agreeing), granting permission to appeal and dismissing the appeal: 

1.      While the starting point of 40 years might be described as severe, it was not outside the range available to the sentencing Judge. 

2.      The non-parole period was not manifestly excessive.

3.      No error has been established that would justify the intervention of this Court.

Sentencing Act 2017 (SA) s 40; Criminal Procedure Act 1921 (SA), referred to.

Hili v The Queen (2010) 242 CLR 520; Ndreka v The Queen [2021] SASCA 11; Munda v Western Australia (2013) 249 CLR 600; R v Peet [2018] SASCFC 91; R v Davey [2017] SASCFC 151; R v Bahrami (2020) 286 A Crim R 394, applied.
R v Bunting; R v Wagner (Supreme Court of South Australia (Sentencing Remarks), Martin J, 29 October 2003); R v Downie (Supreme Court of South Australia (Sentencing Remarks), Sulan J, 17 April 2012); R v Olsson (Supreme Court of South Australia (Sentencing Remarks), Bampton J, 5 April 2018; R v Rust (Supreme Court of South Australia (Sentencing Remarks), Nyland J, 30 April 2004); R v Shove (Supreme Court of South Australia (Sentencing Remarks), Kelly J, 4 October 2013); R v Stewart (1984) 35 SASR 477; R v Tran (Supreme Court of South Australia (Sentencing Remarks), Doyle CJ, 11 December 2009), discussed.

Hackett v The Queen [2021] SASCA 32; R v Hallcroft (2016) 126 SASR 415; WCB v The Queen (2010) 29 VR 483; Wong v The Queen (2001) 207 CLR 584, considered.

KLOSOWSKI v THE QUEEN
[2021] SASCA 85

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Klosowski v The Queen [2021] SASCA 85
Case
[2021] SASCA 85
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CaseChat Overview and Summary

The case of *Klosowski v The Queen* concerned an appeal against sentence. The appellant, Klosowski, was appealing a sentence imposed by the sentencing judge for the murder of two young people. The appeal was heard by the Supreme Court of South Australia.

The primary legal issue before the Court was whether the sentence imposed, specifically the starting point for the non-parole period, was manifestly excessive and therefore warranted intervention by the appellate court. The Court was required to consider the severity of the offending, the appellant's personal circumstances, the impact on the victims' families, and relevant sentencing precedents.

The Court, comprising Kelly P, Livesey JA, and Doyle JA, found that while the starting point of 40 years for the non-parole period was severe, it was not outside the permissible range available to the sentencing judge. The Court reasoned that the appellant's conduct involved a sustained episode of brutal and deliberate violence, during which he had ample opportunity to reflect and desist but chose not to. The Court emphasised that sentencing must be conducted according to law, and that the views of commentators or the media are of less importance than the standards set by appeal courts. Ultimately, the Court concluded that no error of law or fact had been established that would justify intervention. Permission to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

Held per Kelly P and Livesey JA (Doyle JA agreeing), granting permission to appeal and dismissing the appeal:

1. While the starting point of 40 years might be described as severe, it was not outside the range available to the sentencing Judge.

2. The non-parole period was not manifestly excessive.

3. No error has been established that would justify the intervention of this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ultimately, a judge must sentence according to law. Whether the sentence accords with the views of commentators or the media is of much less importance than whether the sentence meets the standards set by the appeal courts, including the High Court. In difficult and tragic cases, as in this case, it is particularly important that commentary be well-informed.Conclusion The appellant has not pointed to any error of law or fact made by the sentencing Judge that would justify the intervention of this Court. We would grant permission to appeal. However, we would dismiss the appeal. DOYLE JA: The circumstances of the appellant’s offending, his personal circumstances, the impact upon the families and friends of the two victims, the sentencing Judge’s remarks, and several relevant decisions of this Court, have been summarised in the reasons of Kelly P and Livesey JA. Against that background, and bearing in mind that the determination of whether a sentence is manifestly excessive is often a conclusion that does not permit of much analysis or exposition,[24] I can be brief.[24] Hili v The Queen (2010) 242 CLR 520 at [59]-[60]; Ndreka v The Queen [2021] SASCA 11 at [28]. The appellant’s offending was undoubtedly at the serious end of the spectrum of criminal behaviour that comes before the courts. His conduct in killing two young people was not planned or pre-meditated in the conventional sense, and occurred during an argument between the appellant and his son, and hence at a time of heightened emotions. However, the appellant was not provoked in any meaningful way by anything his son said or did. Further, while a product of his alcohol-fueled rage, and to an extent impulsive, the appellant’s offending did not reflect a spontaneous or momentary loss of control. Rather, it involved a sustained episode of shockingly brutal, yet deliberately and purposefully executed, violence. Throughout the period of time during which the appellant sought out and loaded his shotgun, fired the first shot that missed his son (Lukasz), ascended the stairs and followed his son into a bedroom, fired the shot that killed his son, reloaded his shotgun, shot through the locked door to the bathroom in which his son’s girlfriend (Chelsea) was taking refuge, and then fired the shot that killed Chelsea, the appellant had ample opportunity to reflect and stop. But he did not do so. Instead he continued with his pursuit, and then brutal execution, of two defenceless young people. The appellant’s conduct was so shocking and senseless that it transcends any ordinary understanding of human behaviour. And, as reflected in the victim impact statements received by the sentencing Judge, the appellant not only took the lives of two young people, and thereby extinguished all of the opportunities and possibilities that their lives represented, but also left their families and friends devastated by their loss and grief. The gravity of the appellant’s offending warranted not only the sentences of life imprisonment that were (mandatorily) imposed, but also a very lengthy non-parole period. Having regard to the various considerations outlined by the sentencing Judge, the starting point of 40 years for the non-parole period was, in my opinion, severe but within the permissible range.

Ratio Decidendi

Legal Principle Established

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