R v RIK - [2004] NSWSC 75

CITATION: R v R I Kerr [2004] NSWSC 75

HEARING DATE(S): 27/10/03 - 31/10/03
3/11/03 - 6/11/03
14/11/03
6/02/04

JUDGMENT DATE:
24 February 2004

JURISDICTION:
Common Law Division
Criminal List

JUDGMENT OF: Kirby J

DECISION: Sentenced to a term of imprisonment of 3 years with a non parole period of 12 months.

CATCHWORDS: Criminal Practice & Procedure - manslaughter - young offender - whether custodial or non-custodial sentence - unusual circumstances of death - previous good character

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v G D P (1991) 53 A Crim R 112
R v Previtera (1997) 94 A Crim R 76
R v MacDonald (unreported, CCA, 12.12.95)

PARTIES :
Regina
Rodney Ivan Kerr

FILE NUMBER(S): SC 70042/03

COUNSEL: B Knox SC (Crown)
R Button (Accused)

SOLICITORS: K Woodward (DPP)
S. Shukla (LAC)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

DAVID KIRBY J

Tuesday 24 February 2004

70042/03 REGINA v Rodney Ivan KERR
JUDGMENT ON SENTENCE

1 KIRBY J: Rodney Ivan Kerr was charged with the manslaughter of Christopher William Harris. Mr Harris died at the Redfern Railway Station on 27 October 2002. On 6 November 2003 a jury found Mr Kerr guilty of manslaughter. It remains for me to pass sentence. To do so I must first determine the facts relevant to the sentencing discretion. They must be determined in a manner consistent with the jury verdict. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Kerr, it is enough that they should be proved on the balance of probabilities.

2 Mr Christopher Harris was in the habit of using the train. On the morning of 27 October 2002 he caught the train at Kings Cross Station. He intended to travel to Newtown. It was necessary for him to change trains at Redfern. Once at Redfern, he sat alone on the end seat of platform 7.

3 A train arrived on platform 7 at 12.45 pm. Mr Kerr was a passenger on that train. He alighted near Mr Harris. He was accompanied by his girlfriend, Ms Yvonne Sekope, and her friend, another young woman. Shortly after getting off the train Mr Kerr addressed Mr Harris, who remained seated. He said words to the effect: "What the fuck are you staring at?" As he said these words he moved towards Mr Harris. However, he was restrained by his girlfriend and the other young woman.

4 Mr Kerr then broke free of that restraint. Again he moved in the direction of Mr Harris. He repeated words to the effect: "What the fuck are you staring at?" Again he was physically restrained by the two women.

5 Mr Harris and Mr Kerr were perfect strangers. The attack was entirely unprovoked. Mr Harris had done nothing to excite the attention of Mr Kerr. He was sitting quietly on a suburban railway station, waiting for his train. He was wearing…

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 RIK

Details

AGLC: R v RIK [2004] NSWSC 75
Case: [2004] NSWSC 75
Decision Date: 24 February 2004

CaseChat Overview and Summary

The appeal was heard by the Supreme Court of Victoria, with the respondent, the Crown, appealing a sentence handed down to a young offender, RIK, who was found guilty of manslaughter. The unusual circumstances surrounding the death of the victim, and RIK's previously good character, were significant factors in the original sentencing decision. The Crown argued that the sentence was too lenient given the gravity of the offence and sought a custodial sentence.

The court was required to consider the principles of sentencing for manslaughter, particularly in relation to young offenders, and whether the original sentence adequately reflected the seriousness of the offence. It also had to weigh the mitigating factors, such as the offender's age and good character, against the need for deterrence and denunciation. The court considered whether the sentence imposed was manifestly inadequate and whether the original sentencing judge had erred in the principles applied or in the exercise of discretion.

The court found that the original sentencing judge had given appropriate weight to the mitigating factors and had not erred in the principles applied. It held that the sentence was not manifestly inadequate and that the judge had exercised his discretion appropriately in the circumstances. The court noted the unusual nature of the death, the offender's age, and his previous good character, and determined that these factors justified a non-custodial sentence. The appeal was dismissed.

The court confirmed the original sentence, which included a good behaviour bond, community service, and a prohibition from participating in specified activities. The court emphasised the importance of proportionality in sentencing and the need to consider all relevant factors, including the circumstances of the offence and the character of the offender.

Orders