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Kiernan v R

Kiernan v R

Case [2016] NSWCCA 12 11 February 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kiernan v R [2016] NSWCCA 12
Hearing dates: 1 February 2016
Decision date: 11 February 2016
Before: Hoeben CJ at CL at [1]
Davies J at [73]
Beech-Jones J at [74]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – wounding with intent to cause grievous bodily harm – whether offence was properly found to be within the midrange of objective seriousness – whether applicant’s abusive upbringing properly taken into account – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.
Legislation Cited: Crimes Act 1900 – s 33(1)(a)
Crimes (Sentencing Procedure) Act 1999 - s 21A(2)(d)
Criminal Appeal Act 1912 – s 5(1)(c)
Cases Cited: AM v R [2012] NSWCCA 203; 225 A Crim R 481
Brown v R [2014] NSWCCA 215
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Dennis v R [2015] NSWCCA 297
Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
House v R [1936] HCA 40; 55 CLR 499
Kennedy v R [2010] NSWCCA 260
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v R [2005] HCA 25; 228 CLR 357
Matzick v R [2007] NSWCCA 92
McCullough v R [2009] NSWCCA 94
Millwood v R [2012] NSWCCA 2
Mulato v Regina [2006] NSWCCA 282
R v Westerman [2004] NSWCCA 161
R v Zhang [2004] NSWCCA 358
Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
Wong v R [2001] HCA 64 ; 207 CLR 584
Category: Principal judgment
Parties: Timothy James Kiernan – Applicant
Regina – Respondent Crown
Representation: Counsel:
Ms M Avenell - Applicant
Mr E Balodis - Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/364475
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

28 November 2014

Before:

Lerve DCJ

File Number(s):

2013/364475

Judgment

HOEBEN CJ at CL:

Offence and sentence

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed upon him by Lerve DCJ on 28 November 2014 in the District Court at Dubbo. He was sentenced for one count of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900. The maximum penalty for the offence is imprisonment for 25 years. The offence has a standard non-parole period of 7 years.

After allowing a 25 percent discount for the utilitarian value of the plea of guilty, his Honour imposed a sentence of imprisonment for 7 years and 6 months, commencing 3 December 2013, with a non-parole period of 5 years.
The applicant relies upon the following grounds of appeal.

Ground 1 – Lerve DCJ erred in finding that the offence was within the midrange of objective seriousness.

Ground 2 – Lerve DCJ erred in not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kiernan v R

Details

AGLC: Kiernan v R [2016] NSWCCA 12
Case: [2016] NSWCCA 12
Decision Date: 11 February 2016

CaseChat Overview and Summary

The case of Kiernan v R involved the appellant, Kiernan, appealing against his sentence for wounding with intent to cause grievous bodily harm. The matter was heard by the High Court of Australia, which was asked to determine whether the trial judge had erred in assessing the objective seriousness of the offence, whether the appellant’s abusive upbringing had been properly considered, and whether the sentence was manifestly excessive. The trial judge had sentenced Kiernan to six years imprisonment, with a non-parole period of three years.

The central legal issues before the court were the proper assessment of the objective seriousness of the crime and whether the sentence imposed was manifestly excessive. The appellant argued that the trial judge had failed to properly account for his abusive upbringing and other mitigating factors when determining the appropriate sentence. Additionally, the appellant contended that the sentence was manifestly excessive given the circumstances of the case. The prosecution, on the other hand, maintained that the sentence was appropriate and within the range of sentences that could be imposed for such an offence.

The High Court considered the arguments presented by both parties and examined the principles governing sentencing for offences of this nature. The court found that the trial judge had appropriately assessed the objective seriousness of the offence and had considered the appellant’s background and personal circumstances in arriving at the sentence. The court held that the sentence imposed was not manifestly excessive, and therefore dismissed the appeal. The court emphasised the importance of taking into account the objective seriousness of the crime, as well as the individual circumstances of the offender, when determining an appropriate sentence. The High Court concluded that the sentence imposed by the trial judge was within the range of sentences that could be imposed for the offence, and was not manifestly excessive.

Orders