Kiernan v R [2016] NSWCCA 12

Kiernan v R [2016] NSWCCA 12

The sentencing judge did not err in assessing the offence as midrange because, although the offence was result-based and the victim recovered, the vicious and sustained throat-cutting with a Stanley knife, the grave risk of death, the further stabbing, the applicant's intention to rob the victim, and aggravating factors supported that assessment. The judge took the applicant's deprived and abusive childhood into account and properly balanced its mitigating effect against criminal history, deterrence and community protection. The sentence of 7 years and 6 months with a 5-year non-parole period was not plainly unreasonable or unjust.

Jurisdiction
Australia
Judgment Date
11 February 2016
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of Nsw; Leave Granted and Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['wounding With Intent to Cause Grievous Bodily Harm' 'objective Seriousness' 'deprived and Abusive Childhood' 'criminal History' 'manifest Excess']
['criminal Law' 'sentencing' 'criminal Appeals'] ['wounding With Intent to Cause Grievous Bodily Harm' 'objective Seriousness' 'deprived and Abusive Childhood' 'criminal History' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of Nsw; Leave Granted and Appeal Dismissed

Legal Issues

  1. 1 ['Whether Lerve DCJ erred in finding that the offence was within the midrange of objective seriousness.' "Whether Lerve DCJ erred in not taking Mr Kiernan's subjective evidence into account when determining the approach to take to his criminal history." 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

The sentencing judge did not err in assessing the offence as midrange because, although the offence was result-based and the victim recovered, the vicious and sustained throat-cutting with a Stanley knife, the grave risk of death, the further stabbing, the applicant's intention to rob the victim, and aggravating factors supported that assessment. The judge took the applicant's deprived and abusive childhood into account and properly balanced its mitigating effect against criminal history, deterrence and community protection. The sentence of 7 years and 6 months with a 5-year non-parole period was not plainly unreasonable or unjust.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal be granted.' 'The appeal be dismissed.']