R v Thomas Kerr - [2015] NSWDC 237

District Court

New South Wales

Medium Neutral Citation: R v Thomas Kerr [2015] NSWDC 237
Hearing dates: 20 – 21 August 2015
Date of orders: 21 August 2015
Decision date: 21 August 2015
Jurisdiction: Criminal
Before: Knox SC DCJ
Decision:
Sentenced to an aggregate term of imprisonment of 27 months with a non-parole period of 18 months

Catchwords: CRIMINAL LAW – sentence – (x4) dangerous driving occasioning grievous bodily harm – (x3) causing bodily harm by misconduct – unsworn oral statement of regret by offender untested – driver’s awareness as to the circumstances around him – inadequate lookout – need for adjustment of speed depending on circumstances on the road – conjecture of blackout rejected in absence of medical evidence – absence of explanation as to cause of collision an unknown fact – imprisonment for driving offences – assessment of gradations of moral culpability – more than momentary inattentiveness – no exceptional circumstances justifying suspension of sentence – partial accumulation where seven victims
Legislation Cited: Crimes Act 1900 (NSW) ss 52A(3)(c) and 53
Cases Cited: R v Jurisic (1998) 45 NSWLR 209
R v Whyte (2002) 55 NSWLR 252; (2002) 134 A Crim R 53; [2002] NSWCCA 343
R v Khatter [2000] NSWCCA 32
R v Howland (1999) 104 A Crim R 273
Regina v Foster (2001) 33 MVR 565
The Queen v Kyle [2014] NSWCCA 30
R v Dutton [2005] NSWCCA 248
Gonzalez v The Queen [2006] NSWCCA 4
Pearce v The Queen (1998) 194 CLR 610
Category: Sentence
Parties: Regina – Crown
Thomas Kerr – Accused
Representation:
Counsel:
Mr Sean Hughes (Crown)
Mr Murugan Thangaraj SC (Defence)
Solicitors: ODPP (NSW)
KM Legal (Defence)

File Number(s): 2014/167867
Publication restriction: None

Judgment

Charges

Mr Hughes appears for the Crown on instructions from the DPP and Mr Thangaraj of Senior Counsel instructed by KM Legal for the offender.
Thomas Kerr has pleaded guilty to seven counts on indictment namely, firstly, four counts of dangerous driving occasioning grievous bodily harm pursuant to s 52A(3)(c) of the Crimes Act 1900 NSW. The maximum penalty for an offence of this nature under this section is seven years imprisonment. The victims named in each of those four identical counts are Paul Haber, Anthony Anderson, Hans Dean and Gillian Anderson.
The offender also pleaded guilty to three counts of causing bodily harm by misconduct pursuant to s 53 of the Crimes Act 1900 NSW. The maximum penalty for an offence under this section is two years imprisonment. The victims named in each of those three identical counts are Gus De Souza, Bharat Mistry and Bryce Dean.
There is also a charge listed on a s 166 certificate, namely a negligent driving charge, and I will return to the Crown at the conclusion of these remarks to ask what application is made in relation to that certificate.

Facts

A brief outline of the facts is that on 16 March 2014 between 8.30am and 8.35am Mr Kerr was driving his black Nissan X-Trail SUV motor vehicle…

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 Thomas Kerr

Details

AGLC: R v Thomas Kerr [2015] NSWDC 237
Case: [2015] NSWDC 237
Decision Date: 21 August 2015

CaseChat Overview and Summary

The appellant, Thomas Kerr, was convicted of four counts of dangerous driving occasioning grievous bodily harm, and three counts of causing bodily harm by misconduct. The appeal was against the sentence imposed by the County Court. The fundamental issue before the court was the determination of an appropriate term of imprisonment for the appellant's driving offences. The court needed to assess the gravity of the offences, the appellant's moral culpability, and whether any exceptional circumstances warranted a reduction in the sentence. Additionally, the court had to consider the principle of partial accumulation for the victims involved.

The court examined the nature of the offences, noting that the appellant was engaged in dangerous driving and caused serious harm to multiple victims. Despite the appellant's unsworn oral statement of regret, the court found it untested and not sufficient to warrant a sentence reduction. The court also considered the appellant's awareness of his surroundings and his failure to maintain an adequate lookout, which contributed to the collisions. The possibility of a blackout was rejected due to the lack of medical evidence supporting such a claim. The court concluded that the absence of an explanation for the cause of the collisions did not provide grounds for leniency. The court assessed the gradations of moral culpability and determined that the appellant's actions were more than momentary inattentiveness. Given the severity of the offences and the number of victims, the court found no exceptional circumstances to justify suspending the sentence. The court decided on partial accumulation for the victims, resulting in an aggregate term of imprisonment of 27 months with a non-parole period of 18 months.

Orders

Orders of the court

Sentenced to an aggregate term of imprisonment of 27 months with a non-parole period of 18 months

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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Medium Neutral Citation:	R v Thomas Kerr [2015] NSWDC 237
Hearing dates:	20 – 21 August 2015
Date of orders:	21 August 2015
Decision date:	21 August 2015
Jurisdiction:	Criminal
Before:	Knox SC DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 27 months with a non-parole period of 18 months
Catchwords:	CRIMINAL LAW – sentence – (x4) dangerous driving occasioning grievous bodily harm – (x3) causing bodily harm by misconduct – unsworn oral statement of regret by offender untested – driver’s awareness as to the circumstances around him – inadequate lookout – need for adjustment of speed depending on circumstances on the road – conjecture of blackout rejected in absence of medical evidence – absence of explanation as to cause of collision an unknown fact – imprisonment for driving offences – assessment of gradations of moral culpability – more than momentary inattentiveness – no exceptional circumstances justifying suspension of sentence – partial accumulation where seven victims
Legislation Cited:	Crimes Act 1900 (NSW) ss 52A(3)(c) and 53
Cases Cited:	R v Jurisic (1998) 45 NSWLR 209 R v Whyte (2002) 55 NSWLR 252; (2002) 134 A Crim R 53; [2002] NSWCCA 343 R v Khatter [2000] NSWCCA 32 R v Howland (1999) 104 A Crim R 273 Regina v Foster (2001) 33 MVR 565 The Queen v Kyle [2014] NSWCCA 30 R v Dutton [2005] NSWCCA 248 Gonzalez v The Queen [2006] NSWCCA 4 Pearce v The Queen (1998) 194 CLR 610
Category:	Sentence
Parties:	Regina – Crown Thomas Kerr – Accused
Representation:	Counsel: Mr Sean Hughes (Crown) Mr Murugan Thangaraj SC (Defence) Solicitors: ODPP (NSW) KM Legal (Defence)
File Number(s):	2014/167867
Publication restriction:	None