R v Kerr

Case [2019] NSWDC 680


District Court


New South Wales

Medium Neutral Citation: R v Kerr [2019] NSWDC 680
Hearing dates: 13 August 2019
Decision date: 13 August 2019
Jurisdiction:Criminal
Before: Haesler SC DCJ
Decision:

Aggregate sentence of seven years nine months with a non-parole period of five years. For orders see [65] -[72]

Catchwords: SENTENCING – Indecent assault of child.
SENTENCING - relevant factors on sentence – early guilty plea – impact of child sexual assault – each a serious example – Form 1 – standard non parole period a guide – impact on child – apology – remorse – ill health - deterrence – retribution – recognition of harm caused.
Legislation Cited: Children’s (Criminal Procedure) Act 1987
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: Attorney General's Application No 1 [2002] 56 NSWLR 146
BT v R [2010] NSWCCA 267
Grube v R [2005] NSWCCA 140
GSH v R [2009] NSWCCA 214
JDX [2017] NSWCCA 9
LB v R [2019] NSWCCA 151
Markarian v The Queen (2005) 228 CLR 357
Postiglione v The Queen (1997) 189 CLR 295
R v Herring (1956) 73 WN (NSW) 203
R v KNL [2005] NSWCCA 260
R v NJK [2011] NSWCCA 151
Ryan v The Queen (2001) 206 CLR 267
Tepania v R [2018] NSWCCA 247
The Queen v Pham [2015] HCA 39
Thompson (2000) 49 NSWLR 383
Weininger v The Queen (2003) 212 CLR 629
Texts Cited: The social dynamics and impacts of institutional child sexual abuse, D Kenny, Judicial Officer’s Bulletin, September 2017, Volume 29 No 8
Category:Sentence
Parties: Mark Kerr (the offender)
Director of Public Prosecutions
Representation:

Counsel:
Ms K Stares (for the offender)

  Solicitors:
Legal Aid NSW (for the offender)
Ms J Walshe (for the Director of Public Prosecutions)
File Number(s): 2018/00237783
Publication restriction: The complainant is referred to in this judgment by a pseudonym.The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900; s15A Children (Criminal Proceedings) Act 1987.

Judgment

  1. The complainant is referred to in this judgment by a pseudonym, pursuant to s15A, Children (Criminal Procedure) Act 1987. There is to be no publication of any information or other material that identifies or is likely to lead to the identification of the complainant. Identification information has been removed from this version of the judgment to comply with the statute.

Introduction

  1. On 2 August 2018 Mark Robert Kerr was arrested and charged with a number of sexual offences committed against Dianne between 2010 and 2013. Kerr was then in his early 40s, Dianne was seven or eight years old. Dianne had revealed the abuse in July 2018 after she was taught at school about healthy and unhealthy relationships.

  2. Kerr admitted his guilt in the Local Court. An indictment was presented today simply to cure errors in the committal documentation. He is to be sentenced for the six offences for which he has accepted his guilt. Each were laid…

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Details
AGLC
R v Kerr [2019] NSWDC 680
Case
[2019] NSWDC 680
Decision Date

CaseChat Overview and Summary

The case of R v Kerr involved the defendant, Kerr, who was convicted of indecent assault of a child. The matter was heard in the relevant court where the primary issue was to determine an appropriate sentence in light of the defendant's early guilty plea and the serious impact of the assault on the child. The court was tasked with considering various relevant factors, including the impact on the child, the defendant's apology and remorse, the defendant's ill health, and the principles of deterrence and retribution.

The court meticulously examined the nature of the offence and its profound effect on the child. It noted the defendant's early guilty plea, which was recognised as a mitigating factor, and also considered the defendant's apology and expressions of remorse. Additionally, the court took into account the defendant's ill health and its potential impact on his ability to serve a sentence. The court then assessed the need for deterrence and retribution, ensuring that the sentence reflected the harm caused to the child.

In determining the sentence, the court adhered to the principles that guide such decisions, using the standard non-parole period as a guide but ultimately focusing on the unique circumstances of the case. The court concluded that an aggregate sentence of seven years and nine months was appropriate, with a non-parole period of five years. This sentence was designed to address the serious nature of the offence while also considering the mitigating factors presented.

The court's final orders were detailed from paragraph 65 to 72, outlining the specific conditions and requirements of the sentence. The decision highlighted the importance of a balanced approach in sentencing, taking into account both the severity of the crime and the mitigating circumstances.

Orders

Orders of the court

Aggregate sentence of seven years nine months with a non-parole period of five years. For orders see [65] -[72]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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