Kiernan v R

HOEBEN CJ at CL:

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.

The facts before the Court were contained in an Agreed Statement of Facts (Exhibit A).

The victim lived alone in a caravan on a property west of Wellington. On the night of 29 November 2013 the applicant and Ms Higgins, who was at the time in an intimate relationship with him, drove to the victim’s caravan in order for Ms Higgins to obtain money from the victim which he had previously agreed to provide to her.

After obtaining the money from the victim, the applicant and Ms Higgins purchased drugs which they then consumed. Ms Higgins in the course of a conversation with the applicant informed him that the victim had engaged in inappropriate sexual conduct with her. (The victim denied any such inappropriate sexual conduct, although he did agree that he had paid one of Ms Higgins’ friends for sex when Ms Higgins was present.)

The applicant and Ms Higgins decided that they would as a payback to the victim, return to his caravan and rob him. At about 1.15am on 30 November 2013 the applicant and Ms Higgins changed their clothes and drove to the victim’s caravan. It was planned that Ms Higgins would drive both of them away after the robbery. Accordingly, she positioned the vehicle to wait for a call from the applicant.

The applicant entered the caravan and he and the victim talked for about an hour. The discussion revolved around the victim’s relationship with Ms Higgins. In the course of the conversation the applicant became enraged and decided that he would seriously hurt the victim rather than rob him.

The applicant pulled a Stanley knife from his pocket, jumped on the back of the victim, pulled his head back and in two motions cut his throat with his right hand. The first cut caused a superficial laceration, but the second caused a deeper wound that commenced to bleed profusely. A struggle thereafter ensued with the victim striking the applicant on the head with a fan in an effort to stop the assault. As a result of being so struck, the applicant fell backwards before again lunging at the victim, this time stabbing him in the right leg.

The victim again struck the applicant with the fan and was able to get off the bed. As he did so, the applicant lunged at him with the knife still in his hand. The applicant threw the knife at the victim, narrowly missing him. The applicant retrieved the knife and ran from the caravan. When the applicant last saw the victim he was lying face down on the bed and the applicant thought that he was dead. The applicant contacted Ms Higgins who drove to the caravan and collected him.

The victim was able to get up and saw the vehicle drive away. The victim, although suffering wounds, was able to walk to a nearby property from where he was taken to Wellington District Hospital.

Ms Higgins was arrested on 1 December 2013 and made full admissions when interviewed by the police. The applicant attended Dubbo Police Station on 3 December 2013 and although he initially denied any involvement, later made full admissions to having committed the offence.

A medical report of 10 February 2014 set out that the victim had suffered a 10cm laceration through the skin and subcutaneous tissue but not into the deeper tissue. There was a smaller 3cm cut on the right side of the neck at the level of the vocal chords. The principal wound was repaired with sutures and there was no major haemorrhage or air leak from that laceration. The smaller wound only required surgical cleaning and dressing.

The treating doctor gave the following opinion in his report:

The applicant was aged 32 at the time of the offending and is currently aged 35. He was born in February 1981. He had a poor criminal record. As a juvenile in 2000, he was convicted and sentenced to a total of 4 years and 6 months imprisonment in respect of sexual assaults on a person under 16 years of age. In 2007 at the District Court in Cairns he was convicted of a number of offences including use/threaten violence whilst armed in company, deprivation of liberty, common assault and stealing. The applicant said that these offences related to one incident after some people drugged and raped his cousin. The applicant and others assaulted the men involved by way of retribution for that offence.

The applicant was also convicted of offences involving damage to property, steal from the person and common assault. The list of prior offences was substantial.

There was a medical consensus that at the time when he was sentenced, the applicant was not suffering from schizophrenia or bi-polar disorder. He was not demonstrating features that would support a diagnosis of a major mood disorder or a psychotic condition.

In a report dated 11 November 2014 Dr Dayalan, who was a consultant forensic psychiatrist, concluded:

The applicant began using cannabis at the age of 10 and progressed to heroin, alcohol and later amphetamines. He was regularly using amphetamines after his release from custody in March 2013.

Exhibit 2 was an important document in the sentence proceedings. It contained considerable material relating to the applicant’s offending and personal circumstances as a juvenile when he came before the Children’s Court on various occasions. He first appeared in the Children’s Court when he was aged 10. He was described as having behavioural problems, such as being belligerent, deceitful and aggressive towards other students and displaying inappropriate sexual behaviours. Attempts both real and proposed to harm those who had displeased him included threats to kill those persons. The material in Exhibit 2 continually referred to such behavioural issues.

Exhibit 2 included a report from a psychiatrist, Dr Schlebaum, dated 3 February 1995, to the effect that “the offender at the time was suffering from a complex combination of post traumatic stress disorder, chronic anxiety, intense fear, phobias, nightmares, poor impulse control, severe recurrent at times suicidal depression, attention deficit disorder, physical developmental delay and multiple personality disorder.” It was also clear from that material that until he was taken into care in 1991 the applicant was subjected to ritual and constant physical, sexual and psychological abuse. That abuse included satanic practices.

Even while in foster care, the applicant was subjected to abuse which included strategies to try to “shame/humiliate him to change his behaviour which only made things worse”. When he wet his bed, he was required to carry a bucket of his urine and pour it on himself. He was also required to wear a bell around his neck so that the members of the foster family knew where he was.

On the basis of the contents of Exhibit 2, there was no issue in the sentence proceedings that the applicant in his formative years was subject to constant and ritualised physical, sexual and psychological abuse.

Having reviewed the circumstances of the offence and the applicant’s criminal history, his Honour considered the competing submissions of counsel. In the course of doing so, his Honour said:

His Honour noted the Crown’s reliance upon what was said by Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 at 477-478:

It was against that background that his Honour said:

His Honour noted that the author of a psychologist’s report from Messrs Duffy Robilliard, found that the applicant was ambivalent about the offence. The report recorded the psychologist being told that he knew that it was wrong in the eyes of the law but in the eyes of justice, he did not so believe. The report recorded that the applicant was able to identify the negative impact on the victim but believed that this impact was generally a positive outcome for society. His Honour found that this indicated an absence of remorse which did not aggravate the offence but did not mitigate the offence by remorse.

On the issue of the potential danger which the applicant posed to the public, his Honour took into account the following from the psychologist’s report:

In relation to the applicant’s abusive upbringing, his Honour said:

His Honour explained that conclusion by reference to the following extract from the judgment of Simpson J in Kennedy:

His Honour also had regard to the following extract from the judgment of Simpson J (Bathurst CJ and Adams J agreeing) in Millwood v R [2012] NSWCCA 2:

His Honour set out his findings in relation to the contents of Exhibit 2 as follows:

In relation to the seriousness of the offence, his Honour accepted that an offence of this kind was a “result offence”. His Honour quoted with approval that which Howie J (McClellan CJ at CL and Simpson J agreeing) said in McCullough v R [2009] NSWCCA 94:

His Honour rejected the applicant’s submission that the objective seriousness of the offence was below the midpoint because of the nature of the injuries and the fact that the victim made a complete and rapid recovery. His Honour did so on the basis that the attack was vicious and sustained and that it was a matter of good fortune rather than anything else that the victim did not suffer more serious harm. His Honour considered the nature of the attack to be a relevant consideration when determining the objective seriousness of the offence. It was for that reason that his Honour assessed its objective seriousness at midrange. His Honour also took into account as aggravating factors the use of a knife, that the applicant was on conditional liberty at the time of the offence and that the attack occurred in the victim’s home.

His Honour gave only limited weight to the Judicial Commission’s statistics relating to offences contrary to s 33 of the Crimes Act. In doing so, his Honour relied upon Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 and the observations of Garling J (with whom Beazley P and Hulme AJ agreed) in Brown v R [2014] NSWCCA 215:

His Honour noted the applicant’s submission that a sentence of imprisonment was inevitable and that the non-parole period should be in the vicinity of 4 years.

His Honour made a finding of special circumstances because of the risk of institutionalisation and because of the need for intensive and extensive supervision upon the applicant’s release to ensure that he received appropriate treatment and counselling and other necessary assistance to enable him to integrate into society. The applicant received a discount on sentence of 25 percent because of his early plea of guilty.

The applicant submitted that an offence contrary to s 33(1)(a) of the Crimes Act was principally a result offence so that the sentence should significantly depend upon the seriousness of the wounding. In that regard, the applicant noted that the victim had only been hospitalised for a day and that apart from a scar, he had made a complete recovery. The applicant submitted that those facts did not allow a finding by his Honour that the offence was within the midrange of seriousness.

The applicant submitted that leaving aside the severity of the wounds, there were other matters which reduced the objective seriousness of the offending. These were that the applicant was alone, his decision to hurt the victim was not premeditated, the victim was not helpless but fought back and that the incident appears to have taken place over a relatively short period.

By reference to those matters, the applicant submitted that his Honour had erred in his assessment of objective seriousness as being at the middle of the range for offences of that kind.

While authorities such as McCullough v R make it clear that offences of this kind are result based, they also make it clear that the manner in which the wound was inflicted, the reason for its infliction and the circumstances surrounding the wounding are relevant when assessing the seriousness of the offence (McCullough v R at [37]).

In this case there was no good reason for the applicant’s attack on the victim and the manner in which the wound was inflicted and the overall circumstances were such as to be correctly characterised by his Honour as “vicious and sustained”.

While the applicant is to be sentenced for what did occur and not for what might have occurred, it is a relevant factor that the deeper of the two wounds to the neck could have been fatal. It is clear from the photographs that had the wound been a centimetre deeper, it would probably have been fatal. It is not without significance that when the applicant left the victim he believed that he was dead.

Another relevant feature of the offending was the mode of the attack, which involved the production of the Stanley knife, the pulling back of the victim’s head and the cutting of the throat in two motions. Even when the victim sought to defend himself, the attack was maintained leading to a further stabbing in the leg. Although the attack was not planned, it is relevant that the applicant went to the victim’s caravan with the intention to rob him.

That such matters are relevant to the seriousness of offences of this kind is clear from R v Westerman [2004] NSWCCA 161, R v Zhang [2004] NSWCCA 358; Matzick v R [2007] NSWCCA 92 and AM v R [2012] NSWCCA 203; 225 A Crim R 481.

In Dennis v R [2015] NSWCCA 297, a case which also involved a victim having his throat cut, Beech-Jones J (Johnson J and RS Hulme AJ agreeing) said:

Also relevant to the assessment of the objective seriousness of the offending were the matters of aggravation identified by his Honour, i.e. the use of a knife, that the applicant was on conditional liberty at the time and that the attack occurred in the victim’s home.

A further difficulty for the applicant in making out this ground of appeal is that the assessment of the objective seriousness of an offence is a discretionary exercise which is classically within the role of the sentencing judge and which this Court will be slow to set aside. The categorisation of the objective seriousness of the offence is only reviewable on appeal on the principles set out in House v R [1936] HCA 40; 55 CLR 499. This was made clear in in Mulato v Regina [2006] NSWCCA 282 (Spigelman CJ at [37] and Simpson J at [46]).

I have concluded that there was ample evidence before his Honour to justify his conclusion as to objective seriousness and that no error in his Honour’s exercise of discretion on this issue has been demonstrated. This ground of appeal has not been made out.

The effect of the applicant’s submissions was not that his Honour did not take into account his subjective case but that he failed to properly take it into account when having regard to the effect to be given to the applicant’s criminal history. In support of that submission, the applicant relied upon the conclusions of his Honour as to the effect which he would give to his criminal history. They comprised the underlined portion of his Honour’s observations at [24] and [26] hereof. The applicant submitted that those conclusions involved error.

The applicant submitted that his Honour also erred in dealing with the applicant’s criminal history and subjective case separately. He submitted that they should have been dealt with together. He submitted that had that been done, it would have been apparent to his Honour that the extraordinary circumstances of his childhood were such as to explain his history of violent offending and would have substantially reduced the weight to be given to his criminal history. While the applicant accepted that protection of the community would still remain a relevant factor, he disputed that the concepts of retribution and deterrence had any part to play in the sentencing process because of his extraordinary subjective case.

The applicant submitted that the depraved circumstances in which he grew up were reflected in his inability to make sensible behavioural decisions and reduced his moral culpability for his offending. He submitted that these matters had to be given appropriate weight and taken into account in mitigation (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [40], [42[ - [44]).

The applicant submitted that his experiences as a child and as he developed, were relevant to the question of whether retribution and deterrence called for an increased sentence. He submitted that by isolating his subjective case from a consideration of his criminal history, his Honour effectively equated his life with that of the general population. This was despite the fact that his Honour elsewhere recognised that he had a compelling subjective case.

The applicant submitted that had his Honour properly considered his subjective case, he would have concluded that it tended against retribution and general deterrence arising from his criminal history being given any weight in the sentencing process.

The extracts from his Honour’s judgment relied upon by the applicant, looked at in isolation, appear problematic. They do, however, need to be read in their proper context and by reference to the way in which the argument proceeded before his Honour in the sentence proceedings.

In the sentence proceedings counsel for the applicant submitted that because of the applicant’s strong subjective case, the only effect which his Honour should give to Veen (No 2) was to find that the applicant’s criminal history did not entitle him to any leniency (T.14.11.14 – p11.16-24). The passages on which the applicant relies involve a rejection of that proposition and indicate that his Honour was prepared to apply the principles in Veen (No 2) more broadly than was submitted by counsel for the applicant. When one looks at the whole of the judgment, and in particular the favourable findings made by his Honour in respect of the applicant’s subjective case, it is apparent that his Honour was not rejecting the applicant’s subjective case. What his Honour was doing was making it clear that despite the strength of the applicant’s subjective case, he still needed to give some effect to the considerations referred to in Veen (No 2). It is, however, fair to say that in relation to those passages relied upon by the applicant, his Honour could have expressed himself more felicitously.

The difficulty which confronted his Honour was that identified by the plurality (Mason CJ, Brennan, Dawson and Toohey JJ) in Veen v R (No 2) at [13] where their Honours said:

In this case one should read the reference to “mental abnormality” as a reference to the applicant’s deprived and depraved childhood and its effect on his subsequent conduct.

Not only was his Honour conscious of the facts relating to the applicant’s childhood but he was well aware of the effect of that traumatic childhood on the applicant’s offending, both in relation to this particular case and in relation to his criminal history. It was for that reason that his Honour quoted with approval the principles set out in Kennedy v R and Millwood v R.

As was conceded in the course of argument in this Court, the applicant’s criminal history, together with the effect on him of his deprived and abusive childhood, meant that his Honour had to take into account the protection of the community and to that extent, at least, Veen (No 2) had effect. Moreover, his Honour recognised that pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 the applicant’s previous “serious personal violence offences” had a part to play in the determination of the sentence ultimately imposed.

It is also not accurate to say that his Honour considered the applicant’s criminal history separately from his subjective case. All that his Honour did was to consider those two topics sequentially before reaching a conclusion as to their combined effect.

The complexity of sentencing repeat offenders with a background of profound social deprivation and dysfunction was explained in Bugmy v The Queen where the plurality (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ) said:

Significantly the plurality in Bugmy v The Queen did not talk in terms of concepts such as “general deterrence” having no effect in such circumstances but referred to those concepts being “moderated in favour of other purposes of punishment” depending upon the particular facts of the case.

Contrary to the submissions of the applicant, this is precisely what his Honour did. His Honour comprehensively examined the applicant’s criminal history and concluded that the principles in Veen (No 2) should be given effect. His Honour also comprehensively examined the applicant’s subjective case and his findings made it clear that his Honour well understood that the effect of that subjective case was to moderate the weight that would ordinarily be given to personal and general deterrence.

What his Honour did was to balance the competing considerations raised by the evidence before him and in the exercise of his discretion fix an appropriate sentence. No error has been identified in that process. Accordingly, this ground of appeal has not been made out.

The applicant acknowledged that the sentencing exercise required his Honour to take into account a number of factors unfavourable to him or which were neutral. He submitted that nevertheless the sentence ultimately imposed went beyond the bounds of a reasonable and just sentence, bearing in mind the objective and subjective circumstances referred to in the first two grounds of appeal. He submitted that any increase in the sentence on account of the Veen (No 2) findings should have been marginal.

When considering this ground of appeal it is not without significance that counsel for the applicant in the sentence proceedings submitted that imprisonment with a non-parole period of 4 years would be appropriate. Against that background, for this ground of appeal to succeed the applicant had to establish (in the absence of specific error) that the sentence was “unreasonable or plainly unjust”. This is a difficult task in that discretionary error of the House v R type had to be established.

On this issue, the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) said in Markarian v R [2005] HCA 25; 228 CLR 357:

The applicant had to demonstrate that the length of the sentence was such that it may be inferred that there was some misapplication of principle in the sentencing process even though where and how was not apparent from the statement of the sentencing judge’s reasons (Wong v R [2001] HCA 64 ; 207 CLR 584; Hili v R; Jones v R). That this Court may have exercised the sentencing discretion differently is not the test: Lowndes v The Queen [1999] HCA 29; 195 CLR 665.) The question in respect of manifest excess is whether a sentence has been imposed that is above or below the range of sentences that could justly be imposed for the offence consistently with sentencing standards: Bugmy v The Queen.

In this case there were some relevant guideposts. The offence of wounding with intent to cause grievous bodily harm carries a maximum penalty of 25 years and a standard non-parole period of 7 years. The maximum penalty and the standard non-parole period are not mere formalities, but represent important guideposts created by the legislature for sentencing courts.

Given the applicant’s failure to make out the first two grounds of appeal, and when all other factors are taken into account, in particular the balancing of such matters as the applicant’s criminal history, the objective seriousness of the offending and the applicant’s strong subjective case, it has not been established that a sentence of imprisonment of 7 years and 6 months with a non-parole period of 5 years was plainly unreasonable or unjust. This ground of appeal has not been made out.

The orders which I propose are:

DAVIES J: I agree with Hoeben CJ at CL.

BEECH-JONES J: I agree with Hoeben CJ at CL.