Director of Public Prosecutions v Kerr

[2024] VCC 721

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00882

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL LEE KERR

---

JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2024
DATE OF SENTENCE:	31 May 2024
CASE MAY BE CITED AS:	DPP v Kerr
MEDIUM NEUTRAL CITATION:	[2024] VCC 721

REASONS FOR SENTENCE
---

Subject:Criminal law – Sentence              

Catchwords:              Guilty plea – intentionally causing injury, common law assault and false imprisonment – intimate partner violence – relevant prior criminal history of family violence against former partners – deterrence, specific and general, deterrence, and community safety sentencing considerations of importance – Aboriginal man – dysfunctional upbringing – application of Bugmy principles – cognitive deficits – reduction in moral culpability – delay – guarded as to prospects of rehabilitation

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:DPP v. Reynolds (a pseudonym) [2022] VSCA 263; Filiz v. The Queen [2014] VSCA 212; Dragovic v. The King [2024] VSCA 95; Bugmy v. The Queen (2013) 249 CLR 571

Sentence:                  Three years, six months’ imprisonment with a non-parole period of two years, four months fixed

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms N. Burnett	Office of Public Prosecutions Victoria
For the Accused	Ms A.C. Sharpley	Leanne Warren & Associates

HER HONOUR:

1Daniel Lee Kerr, you have pleaded guilty to charges of false imprisonment, intentionally causing injury, intentionally damaging property and four charges of common law assault arising from four separate incidents of violence against your then partner, Sophia Kirk[1], between August and October 2021.[2]

[1]A pseudonym.

[2]On 23 May 2024, the accused entered a plea of not guilty to charge one and, the prosecution having lead no evidence in respect of that charge, an entry of not guilty was made in respect of that charge pursuant to section 206 of the Criminal Procedure Act 2009.

2You were born in September 1988 and were between 32 and 33 years of age at the time of this offending.  You have admitted a prior criminal history.

3The background to your offending is as follows.

4

You were released from custody on 29 July 2021, and were then subject to a

24-month community correction order, that had been imposed that day by the Broadmeadows Magistrates’ Court.  You returned to live with your mother,

Tracy Kerr, in Seddon.  Through your mother, you had met Ms Kirk, who was then 38 years old.  Ms Kirk lived alone.

5You then began a short-lived intimate relationship with Ms Kirk between late July 2021 and 20 October 2021.  You had not been in the relationship long before you were first violent towards her.

6On or about 16 or 17 August 2021, you were together at your house in Seddon. You began arguing about whether Ms Kirk had looked at another male on a previous occasion.  During the argument, you slapped the victim’s face multiple times.  Ms Kirk yelled out for help and you then stopped, knowing that others were in the house.  This conduct is the subject of Charge 2 – common law assault.

7The next incident occurred the following day, on either 17 or 18 August 2021.  On that date, you were taking Ms Kirk to your house on a bicycle.  As you approached an alleyway near your house, you pushed her off the bicycle and stood over her.  You then punched the victim’s face with a closed fist multiple times, resulting in bruising around her eyes.  This conduct is the subject of Charge 3 – common assault.

8The third incident occurred approximately one month later on 16 September 2021.  On that date, you were with Ms Kirk at her house.  You became angry with her because she had been speaking with another male earlier that day.  As the argument escalated, you punched the victim’s face multiple times with a clenched fist.  This conduct gives rise to Charge 4 – common assault.  In between punches, you also strangled the victim, to a point where she felt lightheaded and dazed.  She could not breathe and tapped you with her hand to tell you to stop.  This act is the subject of Charge 5 – common assault.  The victim suffered bruising to her neck, as a result of the strangulation.

9The last incident occurred on 17 October 2021.  On that day, at approximately 2.00 pm, you were with Ms Kirk watching television at her house. You saw her receive a text message, and asked to look at it.  She either handed you the phone or you snatched it from her; she is unable to recall which.

10You began yelling at her before you forcefully pinned her down on the couch, by placing your knees on her shoulders.  She was unable to move.  You then punched her to the face about four times.  Ms Kirk attempted to kick out and break the living room window, to alert somebody that she needed help. Eventually she was able to get up and move away from you.

11The victim then ran to the kitchen and into the other rooms of the house in an attempt to escape from you.  You continued to assault her, following her throughout the house.  She could not get away from you.  This conduct is the subject of Charge 6 - false imprisonment.  The act of false imprisonment commenced at this point in time.

12In fear of you, Ms Kirk ran outside and tried to run for help.  However, when she reached the front fence, which was only three steps from the front door, you caught up to her.  She called out to a passer-by for help, but you responded indicating that she was okay.  You then grabbed the victim and pulled her to the ground, causing her head to hit the concrete.  Once on the ground, you punched her twice to her left eye.  You then grabbed the victim by the throat and mouth, and strangled her while you lay on top of her in order to hold her down, and to stop her from screaming.  This conduct is the subject of Charge 7 – intentionally causing injury.

13After this, you grabbed the victim underneath her arms and dragged her back into the house, leaving her on the floor of the loungeroom.  You sat in an armchair and proceeded to search through her phone, before throwing it, causing the phone to smash.  This act is the subject of Charge 8 – intentionally damaging property.

14You and Ms Kirk went into the bedroom.  You heard someone knock on the door, but believing it may be the police, did not answer it.  The victim lay quietly as she feared you would hurt her.  You ultimately calmed down and allowed the victim to place ice on her injured face.

15However, you would not allow the victim to leave your sight.  You prevented her from leaving the house without you.  When anyone came to the door, she had to be quiet, and the blinds over the windows were pulled down.  When you left the house with Ms Kirk, she wore sunglasses to conceal the significant bruising and swelling to her eye.

16Later that evening on 17 October 2021, you attended Coles supermarket at the local shopping centre with the victim.  The victim approached a male staff member while you were outside the store, and asked him to call police as she was being held against her will.  She provided the staff member with her details and he observed bruising to her eye, which was swollen shut.  The period during which she was falsely imprisoned ended at this point.

17At 7.36 pm, the staff member called 000 requesting that police attend at the address provided by the victim.  However, it was not until 4.30 am on 18 October 2021, that the police attended the address, but were unable to raise anyone.

18

In the afternoon of 18 October 2021, you and Ms Kirk attended a bottle-shop in Yarraville.  When you left store, the store attendant noticed that Ms Kirk appeared scared and was beginning to cry.  She lifted her sunglasses and the attendant observed that one of her eyes was bruised and swollen.  Ms Kirk told the attendant that you had done this to her, and she asked him to call police.

Ms Kirk then wrote down her details while she stood at the check-out counter.

19The manager of the bottle-shop reported the matter to police and, at 11.18 pm, the police attended the address, but were unable to raise anyone.

20On 20 October 2021, you and Ms Kirk went to the Victorian Aboriginal Health Service in Fitzroy and met with a doctor.  Ms Kirk lifted her sunglasses and pointed to her bruised eyes, and then towards you.  The doctor suggested that she leave the consulting room and arranged for her to be spoken to separately by a social worker.  Ms Kirk then asked for help and the police were called.

21After the police had taken photographs of Ms Kirk’s facial injuries and obtained a statement from her, she was taken to St Vincent’s Hospital for treatment.  In addition to bruising to both eyes, a CT scan revealed that the victim had suffered the following injuries:

·fractures through the anterior and posterolateral walls of the left maxillary sinus area (the left cheek);

·a depressed fracture of the left cheek bone; and

·comminuted (multiple pieces) nasal bone fracture.

22You were arrested on 21 October 2021, and were interviewed by police.  You denied knowing the victim, stating you were not in a relationship with her.

Nature and Objective gravity of the offending

23There are a number of features that mark the seriousness of your offending.

24This was sustained violence against your intimate partner.  Violence against an intimate partner can never be justified; in this case, it appears your apparent grievance related to a belief she was speaking with other men, against your wishes.  Jealousy, fuelling rage, is an all too common feature of family violence towards women and is totally unacceptable.

25The various acts of violence perpetrated by you against the victim are disturbing. You punched her multiple times directly to the head, on three separate occasions.  You used a closed fist to do so.  With the offending on 16 September 2021, whilst repeatedly punching the victim to the face, you then strangled her to a point where she felt lightheaded and could not breath.  This is an extremely dangerous form of violence.  The risk associated with this potentially life-threatening act, makes this a grave example of common law assault.  As the Court of Appeal recently observed, 'within the context of domestic or family violence, choking represents a chilling exploitation of physical power or dominance'. [3]

[3]DPP v Reynolds (a pseudonym) [2022] VSCA 263, [80]

26Each separate act of violence can only have operated to elevate the victim’s fear for her safety, culminating in the events of 17 October 2021.  On that occasion, the victim was held captive and unable to escape your violent and controlling conduct over a five-hour period.  Even when the victim tried to escape by running outside, you pulled her to the ground, where she hit her head on concrete, before you punched her twice in the eye.  You then strangled the victim around her throat and mouth, laying over her to hold her down and stop her from calling out, before dragging her back into the house.  This was extremely serious offending, that was both violent and degrading, resulting in fractures to the victim’s eye and cheek.  The photographs of the injuries sustained to the victim, clearly demonstrating the swelling and bruising to her face, make for distressing viewing.  Although no victim impact statement has been filed, self-evidently, this must have been a terrifying ordeal for the victim.  She had a right to be safe in her home, but with you, she was not.

27The maximum penalty of ten years’ imprisonment for the offence of intentionally causing injury and for the offence of false imprisonment, is a clear indication of the seriousness with which Parliament, on behalf of the community, views these offences.  Common law assault carries a maximum penalty of five years’ imprisonment.  In sentencing you, I have regard to these maximum penalties as a yardstick against which to assess the seriousness of your offending.  I assess your repeated acts of violence constituting common assault and intentionally causing injuries as grave examples of these offences, and your conduct constituting the offence of false imprisonment to be a lower-mid range example of that offence.

28Your offending is also aggravated by the fact you were subject to a community correction order at the time.

29Almost a decade ago, the Court of Appeal stated as follows:

'It is a shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44.  It is also sadly true that there are a great number of women who live in real and justified fear of the men who are, or were, their intimate partners'.[4]

[4]Filiz v. The Queen [2014] VSCA 212 at [23]

30The authorities make it plain that general deterrence, public denunciation, just punishment and community protection are sentencing considerations of utmost importance when sentencing for family violence offending.  As the Court of Appeal recently observed in the case of Dragovic:

'The community is rightly distressed at the tragic prevalence of intimate partner violence.  The Court joins in that distress.  Those inclined to this type of emotional and physical violence must understand that they will be held to account'.[5]

[5]Dragovic v. The King [2024] VSCA 95 at [33]

31Objectively, you bear a high level of moral responsibility for what you did.  However, this is moderated by your personal circumstances and background to which I now turn.

Personal circumstances

32

Much of your personal background is derived from the information you provided to clinical psychologist, Carla Lechner, whose psychological reports, dated

15 September 2020 and 2 May 2024, were provided on your plea.

33You are an Aboriginal man, with Yorta Yorta heritage on your maternal side.  You are now 35 years old.

34Your parents separated when you were a baby, and you were effectively raised by your maternal grandparents.  You have five younger half-siblings on your mother’s side and three younger half-siblings on your father’s side.  During your childhood, you had little contact with your mother, but have recently become close.  You have not had any contact with your father for the past 10-15 years.

35You describe your childhood as a dysfunctional one where, despite the love of your grandparents, you were exposed to chronic violence, drinking and drug abuse on occasions your uncles were present in the home.  You report that when your grandparents were absent, you and your younger siblings and cousins would be physically assaulted by them, with belts, tree branches and struck with bottles or shoes.  You also report being sexually abused by older cousins over a period of five years, when you were between six and 11 years of age.

36Ms Lechner considers that your early childhood experiences of ‘physical, verbal, emotional and sexual abuse’, resulted in early perceptions that you were ‘chronically unsafe’.[6] 

[6]Exhibit 1 – Psychological Report of Carla Lechner dated 2 May 2024, page 9 at [2]

37You grew up around Echuca and attended Moama Primary School, and then Echuca High School.  You struggled with school, particularly because of your experience of racial taunts and bullying, leading you to fight with other students most days.  For this reason, and having struggled academically, you left school part-way through Year 8 and never returned to any other form of education.

38After leaving school, you began an apprenticeship, but did not complete it.  You worked for a brief period with the Aboriginal Land Council, but you have had no employment for over the past decade.  You are currently in receipt of a Job Seeker Allowance.

39After leaving your grandparents’ home, you moved in with your only long-term partner, for approximately five years.  Together you have three children, aged 14, 12 and 10.  You both lost custody of all children, who now live with their maternal grandparents, due to drug abuse and family violence.  You have limited contact with your children when you are in the community.

40You began using cannabis, amphetamines and alcohol at the age of 15.  It was not long before you progressed to abusing the drug ‘ice’ at the age of 16.  You have now had a long-term addiction to that drug, smoking a point each day prior to your remand, in addition to the habitual use of cannabis, smoking four grams per day.  You also abuse heroin on occasions.  Since your remand, you have remained on the methadone program.

41Concerningly, you have a significant prior criminal history, that includes previous convictions for violence, including instances of family violence perpetrated against other intimate partners, including the mother of your children.  Your prior criminal history is from Victoria and New South Wales.  You also have a history of contravening family violence intervention orders, and other court orders, including previously imposed community correction orders.

42Your first court appearance was in November 2008.  Between that date and 2015, you contravened a suspended sentence of six months’ imprisonment and a community correction order imposed in 2013.

43In 2015, you were sentenced to a community correction order for driving and dishonesty offences, but contravened that order by further offending, including charges of recklessly causing injury, unlawful assault and aggravated burglary, for which you were sentenced to 12 months’ imprisonment in March 2017.

44

In 2015, you were sentenced by the Griffith Local Court in NSW to seven months’ imprisonment, wholly suspended, for stalking and intimidation intending to cause fear in the context of a domestic relationship.  In September 2019, the Deniliquin Local Court sentenced you to 12 months’ imprisonment for a further instance of that offence.  In September 2019, you were also sentenced to

12 months’ imprisonment for sexually touching a person without their consent.

45In December 2020, you were sentenced by the Broadmeadows Magistrates’ Court to 157 days’ imprisonment, in combination with a 15-month community correction order for charges of contravening a family violence safety notice, intentionally causing injury, recklessly causing injury and possession of cannabis. It was a condition of that order that you be assessed for participation in the residential program offered by Wulgunggo Ngalu Learning Place.  Unfortunately, you never attended this program.

46In 2021, you were sentenced to three months’ imprisonment for two charges of contravening a family violence intervention order.

47On 29 July 2021, you were sentenced by the Broadmeadows Magistrates’ Court for breaching the community correction order imposed in December 2020, and the original order was varied by being extended to 24 months.  It was on that date, that you were released from custody subject to the varied community correction order, immediately prior to commencing your relationship with the victim in this matter.

48Finally, although it is not a prior criminal matter, subsequent to this offending, you were sentenced to eight months’ imprisonment for contravening the community correction order, having being charged with failing to comply with reporting obligations.

49Ms Lechner has diagnosed you with complex post-traumatic stress disorder, which she states has never been treated.  She is of the opinion that your early childhood experiences are ‘at the core’ of your post-traumatic stress, resulting in symptoms of chronically low self-esteem, interpersonal distrust and behavioural dysregulation; which is most likely to be intergenerational.  In Ms Lechner’s opinion, these symptoms undermine your ability to maintain healthy intimate relationships, free of jealousy and violence.

50Ms Lechner also assessed you as cognitively, emotionally and socially immature, with ‘a limited capacity for reflective and consequential thinking’.  She states that your long-term addiction to illicit substances, resulting in a Stimulant Use Disorder, have been used by you to manage or mask your symptoms of depression and anxiety.

51You have been assessed by neuropsychologist, Ms Leanne Kennedy with extremely low/borderline cognitive functioning, with particularly poor verbal skills, which she states impacts on your ability to reason.  Ms Kennedy is of the opinion that substance abuse further impairs your reasoning ability, increasing the chance of misunderstandings and anger.[7]

[7]Exhibit 3 – Neuropsychology Report of Leanne Kennedy dated 25 November 2020 at page 9

52As to your offending, Ms Lechner records that upon your release from custody in July 2021, you immediately relapsed into drug abuse.  You told Ms Lechner that you 'lost it' when you saw the victim had received a message from someone else, stating that when you get angry you 'black out' and 'can’t remember'.  You reported that 'stuff (slapping and punching) happens when people in a relationship argue'.  Ms Lechner states that you lack insight into the dangerousness inherent in your actions, particularly the risks associated with strangulation.

53In her earlier report dated 20 September 2020, prepared in relation to family violence offending against your former partner, Ms Lechner assessed you as a high risk of further intimate partner violence, unless you addressed your substance abuse, complex PTSD and inability to manage your anger.  In her report dated 2 May 2024, Ms Lechner notes that you have now offended against a further two intimate partners, and is of the opinion that you remain a very high risk of reoffending.

Matters in mitigation

54Having discussed the objective gravity of your offending, I now turn to the matters that were raised on your behalf in mitigation of your sentence.

55First and foremost, you have pleaded guilty to these offences.  In doing so, you have acknowledged responsibility for your offending and facilitated the course of justice.  This is to your credit.  I have regard to the fact that you first indicated that you would plead guilty to these charges in December 2023, at which time the plea offer was rejected by the prosecution.  Whilst yours is not a plea entered at the earliest opportunity, I accept it is a plea that has utility, in that it saved the court and the community the time and expense associated with a trial, and importantly, saved the victim from the ordeal of reliving these events at a trial.

56Secondly, the offending for which you are to be sentenced occurred two and a half years ago.  This period of delay is of relevance to your sentence.  Over that period, you faced a more serious charge in addition to these matters, until the matter resolved on 13 March 2024.  I accept that having another very serious charge hanging over your head, uncertain as to the outcome until March 2024, has been a cause of anxiety and stress for you.  I have regard to the unfairness limb of delay in reducing the sentence to be imposed.

57For much of this period, you have been in custody, where you have continued on the methadone program.

58You were granted bail following your committal hearing on 25 May 2023, subject to the Court Integrated Support Program (CISP).  At that time, you had been in custody and abstinent from illicit drugs for 17 months.  The final CISP report that was provided at your plea, states that you initially reported good progress avoiding drugs following your release, but resumed using methamphetamine within one month.

59While on CISP, you were referred to Dardi Munwarro for outreach support, but you did not engage with that service.  You advised the CISP Case Manager that you did not wish to be referred to family violence services and because you had been prohibited from attending VAHS, you had difficulty engaging a psychologist.  You then failed to attend at a hearing before the County Court on 28 June 2023 and a warrant was issued for your arrest.  You were then arrested and remanded on 4 July 2023.

60You have otherwise had no access to programs to address your offending behaviours whilst on remand in custody.

61In the circumstances, I am unable to conclude that you have demonstrated improved prospects of rehabilitation since being charged with this offending. Having regard to your prior criminal history, Ms Lechner’s assessment of the high risk you pose of future offending, and your lack of engagement in the CISP program while on bail, particularly through Dardi Mumwarro, I presently assess your prospects of rehabilitation as poor, but they are certainly not extinguished.

62At the age of 35, you have much of your life to live. On a positive note, you have a close relationship with your mother and have stable accommodation available with her, upon your eventual release.  Your mother remains in contact with you in custody and is supportive of you.  You also have a strong bond with your other siblings and some cousins, with whom you also remain in contact in custody.

63Ultimately, your future rehabilitation prospects very much depend upon two things.  First, your ability to remain abstinent from illicit drugs long-term. Secondly, your preparedness to engage in culturally appropriate treatment for your past experiences of trauma and offence-specific counselling, such as the program offered by the Wulgunggo Ngalu Learning Place.

64I give full weight to your early childhood experiences of trauma and exposure to violence and abuse in mitigation of your sentence in accordance with the principles set out in the case of Bugmy.[8]  Your moral culpability cannot be equated to a person whose formative years have not been impacted in this way.

[8]Bugmy v. The Queen (2013) 249 CLR 571

65I also accept that your impaired cognitive functioning and diagnosed complex PTSD, reduce your moral culpability and the need for the sentence I impose to operate as a deterrent to others, to some degree.  Your counsel accepts that this proposition is complicated by your long-standing drug abuse, and that any moderation to the sentencing principle of general deterrence can only be slight.  I agree with that submission.

66I also have regard to the sentencing principle of totality in two ways.  I have regard to the sentence of eight months’ imprisonment imposed in February 2023[9] and also the degree to which the charges in respect of this offending overlaps, or arises from the one incident, to ensure that the sentence I impose reflects the total criminality of your conduct and no more.

[9]In relation to which 248 days were reckoned as served by way of pre-sentence detention.

67On your behalf, Ms Sharpley submitted that all relevant sentencing considerations could be met by the imposition of a term of imprisonment, combined with a community corrections order.  Such a sentence, it was submitted, would best foster your prospects of rehabilitation.  However, as I explained at your plea hearing in rejecting that submission, the gravity of this offending, combined with your prior criminal history, leads me to conclude that a sentence of imprisonment with a non-parole period fixed is the only appropriate sentencing disposition.  However, in fixing a non-parole period, I have still had regard to the sentencing submissions made on your behalf.

68As the authorities make clear, the sentencing considerations of weight in a case such as this are general deterrence and denunciation (although moderated here, for the reasons I have discussed) and community protection.  Others must be deterred by the knowledge that those who elect to engage in violent acts against their intimate partners, will receive 'little sympathy' from sentencing courts.[10] There remains a need to specifically deter you from future violence of this kind.

[10]Dragovic v The King [2024] VSCA 95, at [33]

Sentence

69Balancing each of the factors to which I have referred, whilst having regard to the maximum penalty for each offence, I sentence you as follows:

70On Charge 2 – common law assault, you are convicted and sentenced to six months’ imprisonment.

71

On Charge 3 – common law assault, you are convicted and sentenced to

12 months’ imprisonment.

72On Charges 4 and 5, noting that they arise from the one incident, you are convicted and sentenced to an aggregate sentence of 16 months’ imprisonment.

73

On Charge 6 – false imprisonment, you are convicted and sentenced to

18 months’ imprisonment.

74On Charge 7 – intentionally cause injury, you are convicted and sentenced to two years, ten months’ imprisonment.  This is the base sentence.

75On Charge 8 – intentionally destroying property, you are convicted and sentenced to four months’ imprisonment.

76I order that four months of the aggregate sentence imposed on Charges 4 and 5 and four months of the sentence imposed on Charge 6, be served cumulatively upon the sentence I have imposed on Charge 7 and upon one another.  All other sentences are to be served concurrently to give effect to the sentencing principle of totality.

77This gives a total effective sentence of three years, six months’ imprisonment.  I fix a non-parole period of two years, four months’ imprisonment.

78Pursuant to s 18 of the Sentencing Act 1991, I declare 613 days of pre-sentence detention as having been served under the sentence I have imposed.

79Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that the sentence that I would have otherwise have imposed had you not pleaded guilty, is a sentence of five years imprisonment, with a non-parole period of three years, six months. 

- - -