R v R I Kerr

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

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.

The Incident 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 sunglasses. 6 Mr Harris did not respond to Mr Kerr's words. Rather, he got up and walked behind the railway seat and then to the edge of the platform. He looked towards the city, presumably checking that there were no trains coming from that direction. He then jumped down onto the track. 7 Mr Harris made his way directly across the tracks towards platform 5. As he did so, he looked back at Mr Kerr. A train was in fact approaching platform 5 from the opposite direction, that is, travelling towards the city. The driver saw Mr Harris. He sounded a long blast, termed a "country horn". At the same time the two women with Mr Kerr shouted out "train", attempting to warn Mr Harris. 8 Mr Harris responded by turning his body in a full circle. He then saw the train. In the agony of that moment he was called upon to make a split second decision. He ran directly across the path of the train, attempting to reach the safety of platform 5. He managed to place his hands on the platform, but was unable to pull himself up before the train was upon him. He was struck by the train and died almost at once. 9 The area where the incident took place was isolated. The stairs which provided an exit from the platform were at the other end. Like all suburban railway platforms, it was relatively narrow and elevated, an island surrounded by railway tracks. 10 Mr Kerr was, at this time, almost eighteen years old. He presented as a muscular young man. Mr Harris was forty-four years old. The jury were satisfied, as I am satisfied, that the actions of Mr Kerr were both unlawful and dangerous. They were an assault upon Mr Harris, engendering a well-founded apprehension of imminent physical violence. There was no-one nearby, apart from Mr Kerr's companions. The narrowness of the platform, its elevation and its proximity to the railway tracks added to the danger. It was reasonable and unsurprising that Mr Harris should have sought to escape. The jury, by its verdict, determined that crossing the tracks was a reasonable and proportionate response to the conduct of Mr Kerr, and the fear that it had engendered. 11 Nonetheless, it should be said that the incident was obviously unplanned. It was a spontaneous outburst on the part of Mr Kerr. He had no weapon. He did not actually touch Mr Harris. The closest he came to Mr Harris was about two metres. The whole episode was captured on the video surveillance maintained by the railway station. The video frames record the time. From beginning to end, that is from the time Mr Kerr got off the train, until the time the train struck Mr Harris, twenty-eight seconds elapsed. 12 Mr Kerr says that he personally did not foresee that Mr Harris would react in the way that he did. At the moment of the confrontation, he did not intend that Mr Harris should suffer grievous bodily harm, much less that he should be killed. He intended, by his aggression, to intimidate or frighten Mr Harris. I accept that these statements accurately represent Mr Kerr's state of mind. 13 At the time of this attack Mr Kerr was seriously affected by alcohol. He was also tired. He had been to a number of parties in the fifteen or so hours before the incident. He had consumed a significant quantity of alcohol, including spirits, beer and wine. The fact that Mr Kerr was drunk may be an explanation for his conduct. It plainly is not an excuse. 14 The incident received a good deal of publicity. Still photographs from the video surveillance appeared in a number of newspapers. There was an appeal by the police that those depicted should come forward. The female companions of Mr Kerr determined that they would do so. They spoke to Mr Kerr. He agreed to accompany them to the police. Mr Kerr was later interviewed by the police. The incident had occurred four days before his eighteenth birthday. He was still, at law, a child. The interview was therefore conducted in the presence of his father. Mr Kerr readily admitted his involvement.

Subjective case 15 Mr Kerr was born on 1 November 1984. He is now nineteen years old. Before this incident he had no involvement with the law. He has no previous convictions. At the trial and in the proceedings on sentence, a number of people spoke of his previous good character. He was not an aggressive or violent person. He was described as "respectful to adults". The incident occurred a few weeks after he left school. He was well regarded at school by those who knew him. He had been the captain of the school rugby league team. 16 Mr Kerr appears to have had a happy and stable childhood. He comes from a loving family. He still lives at home. His family has continued to support him after charges were laid. He was on bail before the trial and, indeed, that bail has continued until this day. The bail conditions included a curfew which he has observed. The conditions also required that he abstain from alcohol, which he has done with the assistance of his family. His family removed all alcohol from the house. 17 Mr Kerr appears to have recognised that he had a problem with alcohol and that his level of intoxication led him to display uncharacteristic aggression towards Mr Harris. 18 The support of his family, his conduct since being charged, and his change in attitude suggest that his prospects of rehabilitation are very good. Mr Kerr was referred to Mr W John Taylor, psychologist. Mr Taylor conducted a number of tests, investigating risk factors which may suggest the possibility of further offending behaviour. Mr Taylor concluded that there was "a low likelihood" of his offending again. 19 The same conclusion was reached by Ms Yvette Hanna, a Juvenile Justice counsellor, who prepared a helpful report. Ms Hanna said this: "Rodney's propensity for further offending behaviour would appear very low. Rodney has made successful changes to his alcohol consumption and there appear no other significant issues that would influence any further criminal behaviour. Rodney had not engaged in any criminal activity prior to the current offence and it is strongly believed that his ability to avoid any further offending is relatively high." 20 I accept that Mr Kerr's prospects of rehabilitation are excellent. 21 Mr Kerr regrets his behaviour. He regrets that it led to the death of Mr Harris. He still has difficulty in accepting that his behaviour caused that death. He feels sorrow for the family of Mr Harris. There is therefore a measure of contrition, although by no means an acceptance of full responsibility.

The Sentence 22 The Crown has urged a custodial sentence in these circumstances. Manslaughter is plainly a serious crime. The maximum penalty fixed by statute is twenty five years imprisonment. The Crown drew attention to a number of cases in which young offenders affected by alcohol or drugs had been sentenced for manslaughter. The offender in each case was sentenced to a term of imprisonment. In some cases the terms imposed were quite lengthy. 23 Counsel for Mr Kerr drew attention to the unusual nature of the case. The behaviour of Mr Kerr was entirely out of character. Whilst he had behaved aggressively and unacceptably, such behaviour had extended over a period of twenty-eight seconds. In that short interval he had changed his life forever. Counsel drew attention to the assessment of the Juvenile Justice counsellor. Mr Kerr was considered suitable for a number of non-custodial options, including a suspended sentence, periodic detention, or community service. Counsel suggested that imprisonment, even within a juvenile detention centre, would not assist in his rehabilitation. Indeed, it is likely to retard his prospects of rehabilitation. Counsel drew attention to an important principle which the Court is required to have in mind when sentencing a young offender. The principle was expressed by Gleeson CJ in these words (see R v G D P (1991) 53 A Crim R 112 at 116): " ... in sentencing young people ... the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed." 24 I have given anxious consideration to each of these matters. Mr Kerr's crime involved the death of another human being. I have been furnished with a victim impact statement by Mr Ian McLaughlin, the partner of Mr Harris, and a further statement read to the Court by Ms Roseanna North, Mr Harris' sister. Both are moving documents. Both record the gentle and loving nature of Mr Harris and the anguish of those who grieve his death. I must, of course, deal with such material in a manner consistent with R v Previtera (1997) 94 A Crim R 76 at 85. 25 Limited assistance is provided by other cases, where inevitably the circumstances were different. The starting point in determining an appropriate sentence was stated by this Court (Gleeson CJ, Kirby P and Hunt CJ at CL) in R v MacDonald (unreported, CCA, 12.12.95) in these words: "In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. (See R v Hill (1981) 3 A Crim R 397 at 402) The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system." 26 Here an ordinary citizen, minding his own business, was repeatedly abused and threatened with physical violence, such that he felt constrained to take the extreme step of crossing the railway tracks to escape. In doing so he lost his life. In these circumstances I must impose a custodial sentence. The youth of the offender, the fact that he has not previously been in custody, and the enhancement of his prospects of rehabilitation make it appropriate that the sentence should be served in a Juvenile Detention Centre. I make a finding of special circumstances under s19 of the Children (Criminal Proceedings) Act 1987. For many of the same reasons, I believe it is also appropriate to find special circumstances under the Crimes (Sentencing Procedure) Act 1999, and to vary the statutory ratio between the head sentence and the non parole period. 27 RODNEY IVAN KERR, I sentence you to a term of imprisonment of 3 years to commence from today, 24 February 2004, and to expire on 23 February 2007, with a non parole period of 12 months. You will be released to parole on 23 February 2005. **********

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