R v Kerr

Case [2019] NSWDC 680 13 August 2019

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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Publication restriction: The complainant is referred to in this judgment by a pseudonym.The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900; s15A Children (Criminal Proceedings) Act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

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

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.
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…

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 [2019] NSWDC 680
Case: [2019] NSWDC 680
Decision Date: 13 August 2019

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

Full text does not contain this section.

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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Citations

AGLC Citation

R v Kerr [2019] NSWDC 680

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 16 of 16 shown

LB v R
[2019] NSWCCA 151

…002] 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…
Tepania v The Queen
[2018] NSWCCA 247 Para 24

…atter when it comes to synthesise the ultimate penalties indicated for each offence and the aggregate sentence which will be imposed: Tepania v R [2018] NSWCCA 247, at [103] to [120].…
R v JDX; JDX v R
[2017] NSWCCA 9 Para 53

…a common form. The author appears well qualified. She does not appear to be merely parroting words at odds with other material as occurred in JDX v R [2017] NSWCCA 9 . The report is comprehensive; it did assist me. It is not controversial. But as with all such reports tendered without objection, it needs to be rea…
R v Pham
[2015] HCA 39 Para 38

…of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases: The Queen v Pham [2015] HCA 39.…
R v NJK
[2011] NSWCCA 151

…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 Ci…
BT v R
[2010] NSWCCA 267 Para 32

…n-parole period was eight years. The ratio between that maximum and the standard non‑parole period was the subject of judicial criticism. In BT v R [2010] NSWCCA 267, RS Hulme J, described the relativity between the maximum and the standard non-parole period as “absurd.”…
GSH v R; R v GSH
[2009] NSWCCA 214 Para 1

…The incident assaults involve skin-on-skin contact. As Latham J observed in GSH v R [2009] NSWCCA 214:…
R v KNL
[2005] NSWCCA 260 Para 9

…Dianne was seven or eight, the range encompassed by the offence goes up to 16. The younger the child the more serious the offence: R v KNL [2005] NSWCCA 260.…
Markarian v The Queen
[2005] HCA 25 Para 31

…to look first at the maximum or the standard non‑parole period and simply proceed by way of making proportional deductions: Markarian v The Queen (2005) 228 CLR 357 at [30] and [31].…
R v Grube
[2005] NSWCCA 140 Para 36

…[2002] 56 NSWLR 146, at [39] – [42]. Sometimes, as here, that increase can be substantial: Attorney General’s Application No. 1 at [18] and Grube [2005] NSWCCA 140 .…
Weininger v The Queen
[2003] HCA 14 Para 23

…rrors inflicted upon others as part of the calculus for converting human behaviour in all its forms to units of punishment: Weininger v The Queen (2003) 212 CLR 629.…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 36

…ian . The increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No 1 [2002] 56 NSWLR 146, at [39] – [42]. Sometimes, as here, that increase can be substantial: Attorney General’s Application No. 1 at [18] and Grube [2005] NSWCCA 140 .…
Ryan v The Queen
[2001] HCA 21 Para 61

…ects the community’s expectation that an offender will suffer punishment and for particular offences will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267.…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 39

…leas will be taken into account. I will reduce the otherwise indicated sentences by 25% to take into account their utilitarian value. In Thompson v R (2000) 49 NSWLR 383 , Spigelman CJ noted that there are three reasons why a plea of guilty should attract a lower sentence than would otherwise be imposed:…
Postiglione v the Queen
[1997] HCA 26 Para 56

…ive. The aggregation of all the indicated sentences must be a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295.…
Hoare v The Queen
[1989] HCA 33 Para 34

…fied as appropriate or proportionate to the gravity of the crime considered in the light of that crime’s objective circumstances: Hoare v The Queen (1989) 167 CLR 348 at 354.…

Legislation cited in this decision · 5

Children (Criminal Procedure) Act 1987 (NSW)
1 mention (from Para 1)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 36)
Crimes Act 1900 (ACT)
1 mention (from Para 3)
Criminal Procedure Act 1987 (NSW)
1 mention (from Para 41)

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.