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Court of Criminal Appeal 11 February 2016

Kiernan v R

[2016] NSWCCA 12

Assault & violence
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Kiernan v R [2016] NSWCCA 12
Court: Court of Criminal Appeal
Date: 11 February 2016
Judge(s): Hoeben CJ at CL; Davies J; Beech-Jones J

Background

The applicant pleaded guilty in the District Court at Dubbo to one count of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900. The offence arose from a late-night attack on a man living alone in a caravan near Wellington. After consuming drugs and being told by his partner that the victim had behaved inappropriately toward her, the applicant returned to the caravan, produced a Stanley knife, and cut the victim's throat in two motions. The attack also involved a stab to the victim's leg before the applicant fled. The victim survived without life-threatening injury, though the treating doctor noted the wound was consistent with an intent to cause grievous bodily harm.

The sentencing judge, Lerve DCJ, applied a 25 percent discount for the guilty plea and imposed a sentence of 7 years and 6 months imprisonment, with a non-parole period of 5 years, commencing 3 December 2013. The applicant sought leave to appeal that sentence in the Court of Criminal Appeal.

The applicant had a significant criminal history, including juvenile convictions for serious sexual assault and later offences of violence. He also presented an unusually severe subjective case, including documented evidence of constant physical, sexual, and psychological abuse throughout his childhood, including while in foster care.

  • Whether the sentencing judge erred in classifying the offence as within the mid-range of objective seriousness
  • Whether the sentencing judge failed properly to account for the applicant's severely abusive upbringing when assessing his criminal history
  • Whether the overall sentence of 7 years and 6 months with a 5-year non-parole period was manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's mid-range classification. The offence involved a planned return to the victim's home, the use of a weapon, an attack to the throat, a further stabbing, and a belief by the applicant that he had killed the victim. These were weighty aggravating features. The Court noted that the injury, while serious, did not penetrate deeper tissue and was not life-threatening, which explained why the offence was not placed above the mid-range rather than below it.

On the second ground, the Court accepted that the applicant's childhood was marked by extraordinary and ritualised abuse, including during his time in foster care. The sentencing judge had acknowledged this material. The Court confirmed the relevant principle, drawn from Bugmy v The Queen [2013] HCA 37, that the effects of profound childhood deprivation do not diminish over time and must be given real weight. However, the Court found the sentencing judge had indeed taken this into account and had treated the applicant's criminal history as not warranting additional punishment beyond what was already incorporated in the sentence. No error was established on this ground.

On manifest excess, the Court applied the established test: whether the sentence fell outside the range of sentences that could justly be imposed for the offence, such that error in principle may be inferred. Given the applicant's failure on the first two grounds, and having balanced the objective seriousness of the offending against the strong subjective case, the Court concluded the sentence was not plainly unreasonable or unjust. Leave to appeal was granted, but the appeal was dismissed unanimously.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that planning, weapon use, a vulnerable victim, and a belief by the offender that the victim had died are all relevant aggravating features capable of supporting a mid-range classification, even where the physical injury ultimately proved less severe than intended.
  • Under the principle in Bugmy v The Queen, the effects of serious childhood deprivation retain their mitigating force regardless of how much time has passed, and sentencing courts must give this real and genuine weight when assessing moral culpability.
  • No error was established simply because the applicant could point to mitigating features. The question on a manifest excess ground is whether the sentence fell outside the range justly available, not whether a different judge might have sentenced more leniently.
  • The standard non-parole period of 7 years and the maximum penalty of 25 years under s 33(1)(a) of the Crimes Act 1900 were treated as significant legislative guideposts, not mere formalities, in assessing whether the sentence imposed was proportionate.
  • In dismissing the appeal, the Court reaffirmed that appellate courts do not substitute their own sentencing preference; the discretion belongs to the sentencing judge, and interference requires demonstrated error or a sentence outside the available range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(d)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Wong v R [2001] HCA 64; 207 CLR 584
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Markarian v R [2005] HCA 25; 228 CLR 357
- House v R [1936] HCA 40; 55 CLR 499
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
- AM v R [2012] NSWCCA 203
- Brown v R [2014] NSWCCA 215
- Dennis v R [2015] NSWCCA 297
- Kennedy v R [2010] NSWCCA 260
- Millwood v R [2012] NSWCCA 2
- Mulato v Regina [2006] NSWCCA 282
- R v Westerman [2004] NSWCCA 161
- R v Zhang [2004] NSWCCA 358
- Matzick v R [2007] NSWCCA 92
- McCullough v R [2009] NSWCCA 94