A Bad Childhood Does Not Excuse Repeat Offending

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By Paul Gregoire and Ugur Nedim

In the early hours of 30 November 2013, Timothy Kiernan entered the caravan of a man he was planning to rob. The two men spoke for an hour about Kiernan’s current partner Ms Higgins, who was parked outside in a car waiting to make the getaway.

During the conversation, Kiernan became enraged. He pulled a Stanley knife from his pocket, jumped on the back of the other man, pulled back his head, and with two motions slit the man’s throat. The first cut was superficial, but the second was deeper and bled profusely.

A struggle ensued, as the victim picked up a fan and hit Kiernan to the head with it. Kiernan then lunged again stabbing the victim in the right leg. The victim then hit Kiernan once more with the fan, got hold of the Stanley knife and threw it at Kiernan, narrowly missing him.

Kiernan then retrieved his Stanley knife and fled the caravan. At that stage, the victim was lying face down on his bed. Kiernan thought the man was dead.

Revenge gone too far

Earlier that evening, Ms Higgins, along with Mr Kiernan, had driven over to the victim’s caravan to collect money that he owed her. A few hours later, Ms Higgins told Kiernan that the man had engaged in inappropriate sexual conduct towards her.

The two then decided to rob the man to exact revenge.

Ms Higgins was arrested on 1 December and admitted to her involvement in the incident. Mr Kiernan attended Dubbo police station two days later and confessed, after initially denying any involvement.

The victim managed to make it to the hospital on the night of the incident. The 10cm laceration across his neck was repaired with sutures.

“The type of laceration would be consistent with an intent to cause grievous bodily harm to the patient,” the treating doctor noted, adding that the injury was not life-threatening. The victim was released from hospital on the next day.

A midrange offence

On 28 November 2014, Mr Kiernan appeared in Dubbo District Court for sentencing, after pleading guilty at an earlier date to one count of wounding with intent to cause grievous bodily harm, contrary to section 33(1)(a) of the Crimes Act 1900 (NSW).

This offence carries a maximum penalty of 25 years imprisonment, and a standard non-parole period of 7 years. An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.

Mr Kiernan had a long criminal history, including threatening violence in company and common assault in 2007. Evidence produced during the sentencing hearing outlined that the offender had been subject to constant and ritualised physical, sexual and psychological abuse as a child.

District Court Judge Lerve found that despite the strength of the material relating to Kiernan’s childhood, it did not impact on how his criminal history would be taken into account. He further found that Kiernan’s criminal record revealed “a continuing attitude of disobedience to the law.”

His Honour assessed the objective seriousness of the offence as in the midrange. He took into account that the attack was “vicious and sustained”, as well as aggravating factors including the use of a knife, and that the victim was at home at the time.

Kiernan was given a 25 percent discount on his sentence for his early guilty plea. Judge Lerve ultimately imposed a sentence of 7 years and 6 months imprisonment, with a non-parole period of 5 years.

It could have been fatal

On 1 February last year, Mr Kiernan appealed his sentence on three grounds to the NSW Court of Criminal Appeal (NSWCCA).

The initial ground was that the sentencing judge had made an error by finding that the offence was within the midrange of objective seriousness.

Kiernan’s defence lawyers argued that the sentence should depend on the severity of the wound. In that regard, the victim had only been hospitalised for a day, and apart from a scar, he had made a full recovery. They submitted that the seriousness of the offence was also reduced by the fact that it was not premeditated.

However, NSWCCA Justice Hoeben noted that while offences of this kind are result based, the manner, reason and circumstances surrounding the infliction of a wound must also be considered.

“It is a relevant factor that the deeper of the two wounds to the neck could have been fatal,” he remarked.

His Honour pointed out that “the assessment of the objective seriousness of an offence is a discretionary exercise which is classically within the role of the sentencing judge.” Indeed, Judge Lerve was correct in his assessment, and the ground of appeal was dismissed.

A comprehensive examination

The second ground argued by Kiernan’s lawyers was that the sentencing judge had made an error by failing to consider the offender’s subjective background when determining the approach taken in considering his criminal history.

The lawyers argued that Judge Lerve should have considered “the extraordinary circumstances of his childhood” together with his past criminal offences. This, they submitted, would have reduced the weight given to his record by explaining “his history of violent offending.”

According to Justice Hoeben, this wasn’t the case. His Honour found that while the sentencing judge did take into account the offender’s criminal history, he also gave thorough consideration to Kiernan’s past.

What Judge Lerve “did was to balance the competing considerations raised by the evidence before him and in the exercise of his discretion fix an appropriate sentence,” Justice Hoeben said. And for this reason the second ground of appeal was also dismissed.

A reasonable and just sentence

The third ground of appeal was that the sentence was manifestly excessive.

Justice Hoeben explained that the question raised by this ground is whether the sentence “could justly be imposed for the offence consistently with sentencing standards.”

His Honour took into account that the offence carries a maximum penalty of 25 years imprisonment and an SNPP of 7 years, and remarked that these are not “mere formalities,” but they are “important guideposts” created for sentencing courts.

As the first two grounds were not established, and taking into consideration all the other relevant factors of the case, the judge found the sentence had not been shown to be “plainly unreasonable or unjust.”

His Honour ruled the final ground had not been made out, and the appeal was dismissed in its entirety.

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