R v Kerr - [2015] VSC 249

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT BENDIGO

CRIMINAL DIVISION

S CR 2014 0124

THE QUEEN
v
DANIELLE KERR	Accused

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JUDGE:	T FORREST J
WHERE HELD:	Bendigo
DATE OF HEARING:	27 May 2015
DATE OF SENTENCE:	28 May 2015
CASE MAY BE CITED AS:	R v Kerr
MEDIUM NEUTRAL CITATION:	[2015] VSC 249

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CRIMINAL LAW – Sentence – Murder – Joint criminal enterprise - Objective criminality and moral culpability high – Offender was initiator and driving force of agreement - Lengthy, brutal and cowardly attack on the deceased – Moral culpability high – Methamphetamine use and addiction – Plea of guilty – Utilitarian discount – Convicted and sentenced to 21 years’ imprisonment with a minimum period before parole eligibility of 16 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms L Taylor QC with Ms R Harper	Office of Public Prosecutions
For the Accused (Plea) For the Accused (Sentence)	Mr S Johns Mr P Baker	Theo Magazis & Associates

HIS HONOUR:

Danielle Kerr, you have pleaded guilty to the murder of William Stevenson on Christmas Day 2013. Your plea came only after your co-accused, Darren Lewis, had pleaded guilty and agreed to give evidence for the prosecution in their case against you.

Up until your guilty plea, you had cast all blame for Mr Stevenson's death on Mr Lewis and you maintained that you were no more than a witness to his murderous activities. By your plea, you admit the falsity of those statements.

In 2013, Mr Stevenson was 50 and you were 36. In February 2013, you were unemployed, a methamphetamine user and effectively homeless. Mr Stevenson, in what seems to have been no more than an act of kindness, offered you the spare room of his unit in Kerang. You remained living at his unit until approximately August 2013, when you assaulted him, causing visible facial injuries.

There is some conflict in the evidence about whether the relationship was a sexual one, but I do not regard this as an important issue in this sentencing exercise.

In December 2013, you happened to meet Mr Stevenson again and you moved back into his unit by about the middle of the month. Not long after that, you met Darren Lewis and commenced a short relationship with him. It appears that you then spent your time either with Mr Lewis exclusively or in the company of both men.

By Christmas Eve, you were staying in an old bus situated in a shed on Mr Lewis' farm at Wellsford. Mr Lewis was with you and Mr Stevenson joined you. You all used ice and alcohol. You had purchased two and half grams of ice that afternoon.

At about 5.30 am on Christmas Day, Mr Stevenson asked Mr Lewis to drive him to work at Pyramid Hill. He had intended to work a short shift. You and Mr Lewis then drove him to work using his green Mitsubishi Magna motorcar. You had agreed to collect him…

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 R v Kerr

Details

AGLC: R v Kerr [2015] VSC 249
Case: [2015] VSC 249
Decision Date: 28 May 2015

CaseChat Overview and Summary

The case of R v Kerr involved the defendant, Kerr, who was convicted and sentenced for the murder of an individual. The dispute centred on the appropriate sentence for Kerr, who had entered a plea of guilty to the charge of murder. The court in this case was the Supreme Court of Victoria, which had jurisdiction to determine the appropriate penalty for Kerr's crime.

The legal issues before the court were whether the sentence should reflect the high level of objective criminality and moral culpability in the case, and whether mitigating factors such as Kerr's methamphetamine use and addiction should be taken into account in determining the penalty. The court was also required to consider whether the plea of guilty warranted a discount in the sentence, and what the appropriate minimum period before parole eligibility should be.

The court found that the nature of the crime was heinous, with Kerr being the initiator and driving force of the joint criminal enterprise. The attack on the deceased was lengthy, brutal, and cowardly, with a high degree of moral culpability. While the court acknowledged that Kerr's methamphetamine use and addiction were mitigating factors, they did not warrant a substantial discount in the sentence. The plea of guilty was also considered, and a utilitarian discount was applied. The court ultimately determined that the appropriate sentence for Kerr was 21 years’ imprisonment with a minimum period before parole eligibility of 16 years and 6 months.

In summary, the court found that the objective criminality and moral culpability in this case were high, and that the sentence should reflect that. While mitigating factors were considered, they did not warrant a substantial discount in the penalty. The plea of guilty was also taken into account, and a utilitarian discount was applied. The court ultimately determined that the appropriate sentence for Kerr was 21 years’ imprisonment with a minimum period before parole eligibility of 16 years and 6 months.

Orders