DPP v Kerr [2014] VSC 374

2 At that time, you were 40 years old, and living with one of your sons, Daniel Kerr, his partner, Nikita Firebrace, and their young child, at their home in Echuca. Mr Barrett was 65 years old. He and his wife, Hazel Barrett, lived in a house nearby. You had met and become friendly with Mr Barrett, and had begun a sexual relationship with him, some months before his death.

3 Mr Barrett was friendly with, and generous to, many other aboriginal people in the local community, often driving them around, inviting them over for drinks, or giving them cigarettes or money.

4 On the day of his death, you went over to Mr Barrett's place in the afternoon. The two of you sat around drinking, amicably, in the bungalow at the back of his property. Around 9 pm, you and Mr Barrett were seen in the bungalow, still drinking and dancing close together.

5 Also around 9 pm, your son Daniel came around, wanting a lift to the bottle shop. As Mr Barrett was too drunk to drive, he let Daniel drive his car; you and Mr Barrett went along as passengers. Mr Barrett bought a bottle of scotch whiskey. At the bottle shop, you were seen staggering around, visibly intoxicated.

6 Some time after you returned from the bottle shop, Daniel went home, and you and Mr Barrett continued drinking scotch and socialising.

7 Around 10.30 pm, neighbours heard voices from the back of the Barrett property, including Mr Barrett telling someone to leave.

8 Around midnight, you caused multiple injuries to Mr Barrett, including a knife stab wound to the neck, multiple incised injuries around the eyes, and an injury to the forehead near the hairline. Mr Barrett died from a fatal cardiac arrhythmia, which was caused by one or more of the injuries you inflicted.

9 The circumstances in which you came to inflict these injuries are not entirely clear, for the following reasons. There were no witnesses to what took place. While it is not possible to determine exactly how much beer, scotch and other alcohol you and Mr Barrett had drunk by that time, it is clear that you were both extremely intoxicated when you inflicted the injuries upon him.[1] You suffer from various intellectual deficits, including problems with your memory. Your different accounts of what happened in the bungalow were, at times, confused. Both sides accepted that your perception or recollection of events may have involved some confabulation, caused by your chronic alcoholism and/or post-traumatic stress disorder; confabulation involves making something up, genuinely believing it to be true, but without having a concrete basis. In this case, several expert witnesses were of the opinion that you may have mixed up some of what had happened in the bungalow with a traumatic childhood event.

10 Shortly after the incident, you told a number of people that Mr Barrett had tried to rape you that evening. In your record of interview, you said that he had been dancing too close and getting "touchety" with you, and you had been pushing him away and telling him to cut it out. Then he pinned you on the couch, and was kissing you and trying to undo your jeans and lift your top; you were telling him to stop. You said you managed to get him off by kicking him. Then you went to pour yourself another drink. He got up, grabbed you by the hair and hit you. Then he started accusing you of hiding his bottle, and you picked up something sharp from the table and stabbed him - you thought you stabbed him once, in the eye. You said that when he tried to force himself on you, this brought back memories from when you had been sexually abused as a little girl. Initially, you said he dropped to the ground as soon as you stabbed him; later, you said he dropped about 5 or 10 minutes after you stabbed him, after he told you not to call an ambulance for him. After he dropped to the ground, you became scared and ran off.

11 Some of the physical evidence supports your account, some does not.

12 In fact, Mr Barrett had around 20 injuries, some of which were incised injuries, others were abrasions or lacerations. There were at least nine, tiny, incised injuries around the eye area, which could have been caused by sharp fingernails, or by the movement of a sharp object such as a knife. There was a dispute between the pathologists as to whether the forehead injury was an incised injury or an abrasion. There was no dispute that the neck injury had been caused by a sharp object, such as a knife.

13 There were bloodstains all over the bungalow, consistent with Mr Barrett having received a bleeding injury (probably the one to the forehead), before moving around the room. The overturned chairs and scattered arrows were consistent either with a struggle having taken place between the two of you, or somebody having knocked things over as they stumbled about. Mr Barrett's fly was undone, although the top button of his jeans was still done up. One of your earrings and a broken gold chain were located on the bungalow floor, and your top had damaged fabric and a missing button; that evidence is also consistent with some sort of struggle.

14 You did not tell the police that you had been in a sexual relationship with Mr Barrett prior to that night; instead, you painted a picture of yourself as someone who had successfully resisted previous sexual advances by him, and had been offended by him becoming "touchety" on the night in question. There are a number of possible reasons why you may not have given a full account of your past relationship with Mr Barrett. Whilst your failure to accurately describe your relationship is an unexplained and unsatisfactory feature of your record of interview, I am not satisfied that you deliberately lied to the police in this regard in order to support a false allegation of rape.

15 At trial, there was no dispute that Mr Barrett died from a fatal cardiac arrhythmia; the question was what caused his heart attack. Your counsel argued that the jury could not be satisfied beyond reasonable doubt that the heart attack was not caused by a combination of Mr Barrett's pre-existing heart problems and stress or excitement, quite independently of any of your acts. The prosecution argued that the heart attack was caused by oculocardiac reflex (from the eye-related injuries), neurogenic shock (from the neck injury), or a combination of the two. In returning a verdict of guilty of manslaughter, the jury must have been satisfied beyond reasonable doubt that Mr Barrett's death was caused by one or more of your acts.[2] However, it is not apparent from the verdict which act or acts they found to be causative.

16 The prosecution urged me to conclude, for sentencing purposes, that:

(a) It was the stab wound to the neck which caused Mr Barrett's death; and

(b) I should be satisfied that you inflicted the neck injury after any possible or perceived threat of rape had dissipated, because you were angry and irritable from arguing with Mr Barrett about a bottle of alcohol.

17 Were it necessary for me to choose a single cause of death, I would agree that the neck wound is the injury most likely to have caused death. However, given my conclusions as to the circumstances in which both the eye and neck injuries were inflicted, it does not make any practical difference (either to the seriousness of the offence, or your moral culpability) which injury or injuries was or were causative.

18 In finding you guilty of manslaughter, the jury must also have been satisfied beyond reasonable doubt that you were not acting in self-defence when you performed the relevant act or acts.

19 After drinking and dancing, and behaving in a friendly manner for many hours, Mr Barrett made a sexual advance towards you. You told him to stop. In your extremely intoxicated state, and given your intellectual deficits and past history of sexual abuse and post-traumatic stress disorder, you overreacted to the situation, and were limited in your ability to generate alternative solutions to the situation you believed you were facing. Whatever the precise sequence and manner in which the injuries were inflicted, I accept that they all occurred spontaneously, within a matter of minutes, and at a time when you perceived yourself to be facing a threat of rape. I accept that you did believe that it was necessary for you to do what you did to defend yourself. However, there were no reasonable grounds for a sober person in your position to have believed that your acts were necessary to defend themself.

20 The maximum penalty for manslaughter is 20 years' imprisonment. The circumstances which may give rise to a conviction for manslaughter are, however, so various, and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff that can be applied to such cases. It is therefore necessary to have regard to the particular circumstances of the offence, and the factors personal to you, in determining the appropriate sentence.

21 Before turning to your personal circumstances, I want to say something about the impact your actions have had on others. Victim impact statements have been filed by Mr Barrett's wife, Hazel Barrett, and their only daughter, Mandy Barrett. They both speak of their tremendous grief and pain at losing Mr Barrett.

22 Hazel and Douglas Barrett were married for 41 years. Some years ago, he became her carer because of her ongoing health problems. Apart from experiencing an enormous sense of grief and loss, Mrs Barrett has become very fearful and anxious as a result of her husband's death.

23 Mandy Barrett was heavily pregnant with her first child, when she learned of her father's death. What should have been a happy time was completely overshadowed by his death and its aftermath, and by the need to take care of her mother who needed considerable support. She is greatly saddened by the thought that her father did not get to walk her down the aisle, and that he and his first grandchild never got to meet each other. She is also suffering from the fact that the case has attracted a degree of public notoriety in the relatively small community of Echuca.

24 You were born in October 1971, the youngest of 13 children (two of whom died in infancy). Your father worked from time to time in a charcoal business, but was frequently unemployed. Your mother worked at home.

25 A couple of years before you were born, your family moved from the Cummeragunga Aboriginal Reserve into a small housing commission house in Moama, NSW. You grew up and went to school in Moama. You identify as a Koori woman, although are uncertain of your tribal heritage.

26 Welfare records show that violence and drunken behaviour, particularly by your father, were common in the household while you were growing up. Welfare authorities also had concerns about the family's standard of living, overcrowding at home, and the poor school attendance rates of you and the other children. Numerous family members were in trouble with the police, during the years when you were growing up.

27 Although you have some happy memories from your early childhood, things changed when you were about 8 years old. You were raped so violently by a male relative that you had to spend several months in hospital in Melbourne, recovering from serious injuries. The treatment itself was painful and distressing, and your distress was exacerbated by the fact that none of your family visited you in hospital.

28 That childhood incident has left you with long-term physical and psychological damage. You have experienced ongoing medical problems, and it has affected your capacity to enjoy sex.

29 As an adult, you have been in a number of destructive relationships with men who have been physically and emotionally violent towards you.

30 The first of your six children (to five different fathers) was born when you were 16 years old. You were unable to cope with the care of your children; they have all been raised by other family members.

31 You have struggled with alcohol and cannabis addiction throughout your adult life. You have also used intravenous amphetamine from time to time.

32 In 2010, you undertook treatment in an indigenous rehabilitation facility, as a result of which you were able to re-establish a relationship with some of your children, from whom you had become estranged. Unfortunately, after leaving that facility, you relapsed into alcohol and drug abuse.

33 You have been diagnosed as suffering from post-traumatic stress disorder, as a result of your childhood rape, which has been exacerbated by the ongoing violence to which you have been subjected throughout your life. The symptoms of that disorder include hypervigilance, fear, anxiety and depression. You have, for some years, been prescribed Xanax for anxiety.

34 You are easily irritable, and prone to angry outbursts and reckless and self-destructive behaviour, all of which can be exacerbated by alcohol. It seems that some of that behaviour may be related to your post-traumatic stress disorder. In so far as that behaviour may be a personality trait, courts now recognise that the experience of growing up in a socially-disadvantaged environment, surrounded by alcohol abuse and violence, may leave a mark on a person throughout life;[3] your upbringing has helped make up the person that you are today.

35 You also suffer from intellectual impairment. Testing shows that 95% of people your age would score higher than you on intelligence tests. Your cognitive skills have been described as roughly equivalent to those of a seven year old child. Your particularly poor memory skills are indicative of an acquired brain injury, although the actual cause of that injury is unknown. However, there is no suggestion that your cognitive deficits are such that you were unable to appreciate the nature and quality of your actions on the night in question.

36 The prosecution does not dispute that there are a number of ways in which Verdins principles are highly relevant in sentencing you. Your post-traumatic stress disorder and intellectual deficits both played a substantial role in your offending, and are ongoing conditions. In the circumstances of this case, they operate so as to reduce the moral culpability of the offending conduct, and to moderate to a considerable degree the need for general deterrence. There is also no dispute that a sentence of imprisonment may weigh more heavily on you than on a person without such problems.

37 I am also satisfied that there should be some moderation of the need for specific deterrence, due to Verdins considerations.

38 You have a substantial number of convictions, from 14 separate court appearances between October 1989 and August 2011. They are primarily for shoplifting, alcohol and driving offences. In November 1995, you were convicted of assault occasioning bodily harm; the circumstances of that offending are not known to me, but the fact that you were only placed on a good behaviour bond suggests that the offending was not serious. You otherwise have no history of being violent.

39 You left school in year seven, to assist in the care of younger nephews. You have only a limited ability to read and write. You have had very little employment, and have been on a disability pension since 2005. Since you have been in prison, you have undertaken a number of courses and workshops, to improve your knowledge and skills in a number of areas; this is to be encouraged, and demonstrates a desire to improve yourself. However, given your age, your history, and your intellectual deficits, your employment prospects after you leave prison seem poor.

40 You are currently on a methadone program. Hopefully, you will be able to engage in substance abuse treatment programs. However, given the major role which alcohol and drugs have played throughout your life, I do not underestimate the challenges you will face trying to remain alcohol and drug free once you are released from prison.

41 Although there have been past opportunities for you to engage in psychological counselling, including with aboriginal health services, you have not shown any willingness to participate in such treatment. It would be highly desirable for you to take up any opportunities available for you to receive counselling in relation to your post-traumatic stress disorder.

42 I accept that you will need considerable assistance and support to become a more functioning member of the community. I hope that there will be opportunities for you to receive such assistance and support, during the period in which you will be eligible for parole.

43 In November 2012, you were committed to stand trial for murder. In January 2013, you first offered to plead guilty to manslaughter; that offer was rejected by the prosecution. Your first trial for murder commenced in October 2013; however, I discharged the jury at the start of the defence case, due to some prejudicial evidence having been led unintentionally by your previous counsel. In January 2014, you repeated your offer to plead guilty to manslaughter. Irrespective of the strength of the Crown case, such an offer to plead guilty has utilitarian value. And, had the offers been accepted, the Barretts would have been spared the distress of two criminal trials.

44 In fact, given that causation was a live issue at both trials, it could not be said that your offers involved no more than an acceptance by you of the best conceivable outcome at trial. I am satisfied that your offers are a demonstration of remorse, genuine contrition and an acceptance of responsibility for what you had done. Indeed, you were upset as soon as you realised what you had done; and you immediately told family and the police what had occurred (in so far as you were able to recall the events). The prosecution does not dispute that you were and are genuinely remorseful for what happened.

45 In the circumstances, I regard your early offers to plead guilty to the offence of which you were ultimately convicted as a reasonably substantial mitigating factor.

46 In sentencing you, I have not overlooked the pain and suffering of the Barrett family, or the fact that the offence of manslaughter involves the unlawful taking of a fellow human being's life. However, there are substantial mitigating factors in this case, which have led me to impose a lesser sentence than would otherwise have been appropriate.

47 Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment of 7 years. I fix a period of 4 ½ years as the period you must serve before becoming eligible for parole.

48 Further, I declare that the period to be reckoned as already served under this sentence is 818 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.

[1] Mr Barrett's blood alcohol level was 0.24. Yours was not tested.

[2] I directed the jury that, before they could return a verdict of guilty of any offence, they would have to be unanimous as to which act or acts caused the heart attack.

[3] See for example the recent High Court decision in Bugmy v R [2013] HCA 37.