Klosowski v The Queen [2021] SASCA 85 (26 August 2021)

An aspect of the criminal justice system that regularly attracts the attention of the media and the public is the sentencing of criminals. This attention is usually focussed on a sentence for a crime that was particularly heinous – such as a murder or the sexual abuse of children.

When a sentence is perceived to be a “light”, there’s often public discussion or disquiet once the sentence is publicised.

On occasion, the DPP will appeal against a sentence imposed on the basis that it is “manifestly” inadequate – but such appeals are relatively rare. This is because the imposition of a sentence is at the discretion of the sentencing judge and involves an often complex and difficult assessment and balancing of competing considerations.

For that reason and for considerations of fairness to the person sentenced, appeals by the DPP against a sentence will be “sparing” and brought only when it could reasonably be argued that the sentence is so inadequate as to affect public confidence in the administration of justice.

Appeals against a sentence therefore, are more likely to be those brought by the person sentenced for the crime. This was so in a recent appeal against a sentence of imprisonment to the South Australian Court of Appeal – Klosowski v The Queen. The principal ground of appeal was that the sentence was “manifestly” excessive.

Mr Klosowski was convicted of two counts of murder which were committed in circumstances of extreme brutality, the two victims being his son and his son’s partner.

Mr Klosowski was sentenced to life in prison with a non-parole period of 34 years.

The Court dismissed the appeal, finding no reason to interfere with the sentence imposed by the sentencing judge.

A compelling feature of this appeal were the remarks made by the Court as to its role, the role of a sentencing court and the expectations of the community. The Court made those remarks against a background of adverse public commentary and media coverage sparked by the bringing of the appeal in the first place. The general tone of that coverage was that it was outrageous that Mr Klosowski should bring an appeal.

The Court observed that the appeal was neither misconceived, nor wholly without merit. Although unsuccessful it was reasonably arguable. The Court also said:

"…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."

Read the judgement in full.