Kerr v R [2016] NSWCCA 218. Bathurst CJ, Hoeben CJ at CL, Price J. The Court of Criminal Appeal has dismissed an appeal
Judgment Summary Supreme Court New South Wales Court of Criminal Appeal Kerr v R [2016] NSWCCA 218 Bathurst CJ, Hoeben CJ at CL, Price J The Court of Criminal Appeal has dismissed an appeal by Mr Kerr against his sentence for four counts of dangerous driving causing grievous bodily harm and three counts of causing bodily harm by misconduct. The sentence imposed was 27 months with a non-parole period of 18 months. Mr Kerr was driving his vehicle in the first lane of a three lane highway when he ran into the back of a group of seven cyclists travelling in the same lane and in the same direction. The road was straight at the point of the accident, however, an earlier bend in the road meant that the cyclists were visible for a distance of approximately 300m. The cyclists were travelling at 32km/h. A nearby driver whose cruise control was set to 80km/h indicated that Mr Kerr was driving slower than him. It was accepted that he was driving at approximately 70km/h. Several witnesses reported that Mr Kerr did not slow down or take any action to avoid colliding with the cyclists. Four of the cyclists sustained grievous bodily harm, while the remaining three sustained bodily harm. Mr Kerr had prior criminal convictions for affray, for which he completed a community sentence order, and for aggravated robbery, for which he was subject to a two year intensive corrections order that was in force at the time of the offences. So far as his driving record was concerned, Mr Kerr was disqualified from driving for two years in 2010 after being charged for using a mobile phone while driving in 2010 and for driving with a midrange prescribed content of alcohol in 2009, both offences for which he was fined. The sentencing judge noted that the applicant’s driving history and, to a limited extent his criminal history, was not an aggravating factor, but rather, was only relevant to determining where a sentence should lie within the boundaries set by the objective seriousness of the offence. The sentencing judge determined that, given the distance at which the cyclists were visible, the applicant’s inattention could not have been momentary and thus, the distance over which the applicant drove inattentively was an aggravating factor. He also stated that the applicant’s speed was excessive in light of the surrounding circumstances and concluded that the applicant’s moral culpability was above the bottom end of the spectrum though closer to that end than the higher end. The main issues on appeal were: first, whether the sentencing judge erred in taking Mr Kerr’s previous unrelated criminal history into account; and second, whether he erred in finding that Mr Kerr’s moral culpability was not at the lower end of the range. Related to this second issue was whether there was error in finding that Mr Kerr was driving at excessive speeds; that the length of the journey during which he was driving dangerously This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
was an aggravating factor; and that the accident was not the result of momentary inattention. On the first issue, the Court found that to drive in a manner dangerous to the public whilst the subject of an intensive corrections order for an offence of a different nature could be held to be an aggravating circumstance. It held that whether an offender’s criminal record is a matter of aggravation is largely a matter for the sentencing judge and that there was no error in the manner in which the sentencing judge took Mr Kerr’s criminal history and driving record into account. On the second issue, the Court found that there were two hypotheses open to the sentencing judge: either Mr Kerr was inattentive for a period of at least 17s or he was aware of the cyclists and yet did nothing to take account of them until a point of momentary inattention caused the accident. In light of Mr Kerr’s indications that he did not see the cyclists, the former finding was open to the sentencing judge. The Court held that Mr Kerr’s speed could be taken into account as an aggravating factor as it was excessive in circumstances where he was approaching a group of cyclists, even though it was not above the speed limit. The Court held that once it was concluded that the accident was not the result of momentary inattention, the distance during which Mr Kerr was inattentive to the road was a relevant and aggravating factor. In those circumstances, it was held that a finding that Mr Kerr’s moral culpability was above the lowest end of the range was open.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
