The Queen v Kerr [2015] VSC 249

Supreme Court of Victoria|2015-05-28|Before: T FORREST J

CRIMINAL LAW - Sentence - Murder - Joint criminal enterprise - Objective criminality and moral culpability high - Offender was initiator and driving force of agreement - Lengthy, brutal and cowardly attack on the deceased - Moral culpability high - Methamphetamine use and addiction - Plea of guilty - Utilitarian discount - Convicted and sentenced to 21 years' imprisonment with a minimum period before parole eligibility of 16 years and 6 months.

1 Danielle Kerr, you have pleaded guilty to the murder of William Stevenson on Christmas Day 2013. Your plea came only after your co-accused, Darren Lewis, had pleaded guilty and agreed to give evidence for the prosecution in their case against you.

2 Up until your guilty plea, you had cast all blame for Mr Stevenson's death on Mr Lewis and you maintained that you were no more than a witness to his murderous activities. By your plea, you admit the falsity of those statements.

3 In 2013, Mr Stevenson was 50 and you were 36. In February 2013, you were unemployed, a methamphetamine user and effectively homeless. Mr Stevenson, in what seems to have been no more than an act of kindness, offered you the spare room of his unit in Kerang. You remained living at his unit until approximately August 2013, when you assaulted him, causing visible facial injuries.

4 There is some conflict in the evidence about whether the relationship was a sexual one, but I do not regard this as an important issue in this sentencing exercise.

5 In December 2013, you happened to meet Mr Stevenson again and you moved back into his unit by about the middle of the month. Not long after that, you met Darren Lewis and commenced a short relationship with him. It appears that you then spent your time either with Mr Lewis exclusively or in the company of both men.

6 By Christmas Eve, you were staying in an old bus situated in a shed on Mr Lewis' farm at Wellsford. Mr Lewis was with you and Mr Stevenson joined you. You all used ice and alcohol. You had purchased two and half grams of ice that afternoon.

7 At about 5.30 am on Christmas Day, Mr Stevenson asked Mr Lewis to drive him to work at Pyramid Hill. He had intended to work a short shift. You and Mr Lewis then drove him to work using his green Mitsubishi Magna motorcar. You had agreed to collect him from work at the conclusion of this shift but you failed to do so. This apparently infuriated Mr Stevenson.

8 A friend of his, Donna Stewart, picked him up from the side of the road and took him to his property. It seems Mr Stevenson remained irate. He threw his already broken mobile phone at you when you finally arrived at Ms Stewart's Pyramid Hill home. You, Mr Lewis and Mr Stevenson then left Ms Stewart's property. She described Mr Stevenson at this stage as yelling abuse at you and Mr Lewis.

9 What I have recounted thus far is a very short summary of events and it is largely undisputed. The events I shall describe shortly are set out in Darren Lewis' police statement made on 13 March 2015. For reasons that I will explain in due course, I accept Mr Lewis' account.

10 Shortly before you picked up Bill Stevenson, you had argued with him over the telephone. You said to Mr Lewis that you wanted to kill Mr Stevenson. You used ice again in a parking bay near Pyramid Hill as did Mr Lewis. You told him that you hated Bill and you wanted to know what it was like to kill someone. You asked him to help.

She hated Bill. She hated him with a passion. She laughed because there is a movie called Kill Bill or something. I told her she was fucking mad. We discussed it before we got to Donna's house. I agreed with Danielle that I would help her. She wanted to do it and I would just be there in case she got overpowered.

12 A little further on in his statement, Mr Lewis said this:

The plan was after we picked Bill up, we should stop at a random place and kill him.

13 Thereafter, Mr Lewis described how Mr Stevenson was picked up, still irate and you set off back towards Bendigo. He then said:

We stopped at an area called Kamarooka. It was the first dirt road I had seen and drove in. The drive in was about three to 400 metres from the main road. This is when I was going to the toilet. I had a burn on the crack pipe. Danielle put on a mini dress. I grabbed the toilet area and done my business. I would have been gone for about ten to 15 minutes. I knew this was the area that Danielle was going to kill Bill. My role was to be there in case she got overpowered.

14 I continue to quote passages from Mr Lewis' police statement:

As I walked back to the car, I did not see Danielle or Bill in the car. I called out to them and I saw them walking back towards the car from the other end. Danielle was behind Bill. I saw Danielle pick up a rock in her right hand half the size of a football and cracked Bill to the back left side of the head. When Danielle picked up the rock, she looked at me and smiled before cracking him. Danielle took about three to four steps towards Bill and she hit him with the rock in her right hand. Bill fell to the ground face first. She hit him pretty hard and Bill was on the ground and then got up on his knees. That was for about 30 seconds to a minute before he stood up. Danielle ran to the passenger seat of the car and she grabbed the knife. This knife was Danielle's. It was a large hunting knife with a slider and a brown handle which I think was made of wood. The knife would have had a ten inch blade easy. She must have collected it from the flat because I've never seen that knife before.

At this stage Bill has staggered to the driver's seat and sat in the seat. Danielle was holding the keys up at him. She was walking up the front of the car with the keys and the knife and saying, 'I told you I was going to kill you'. Danielle was taunting him. Danielle has gone around to him and stood in the doorway with her back to the driver's door. I was standing in front of the car about ten metres away. I saw she was stabbing at him with the knife to the face area. She stabbed him about half a dozen times but I did not see how many actually struck him. I did see Bill had a large slash to the right side of his throat as I could see him holding it. Bill, still holding his throat, got up, pushed Danielle off and ran off down the track.

15 Mr Lewis, in his statement, then went on to set out how you sat in the passenger seat of the car as he, Mr Lewis, followed Mr Stevenson in the Magna.

Bill had collapsed against a tree. I parked the car behind him. Danielle got out of the car first then I got out of the car. She ran towards Bill. I could hear Bill begging her, saying, 'Please don't, please don't'. Danielle grabbed a dry dead tree, she stood there laughing at him. She went 'round the back of him and swung the tree at him and hit him on the back of the head. The second strike was to the left side of the body. I heard his rib cage go and he was squealing. At this stage he fell away from the tree and she caved his face in with the tree. Danielle was holding the tree with two hands and hitting Bill straight down. I reckon she hit him about ten times to the face. While she was smashing him, she was squealing, "Die". She was screaming with delight, she was getting off on it. When she stopped, she wanted me to fuck her next to the body.

16 Mr Lewis went on to describe that he struck Mr Stevenson to the legs after you had finished. You then describe placing Mr Stevenson's body in the boot of the car and driving back to Mr Lewis' farm. Later, on Christmas night, Mr Lewis drove the Magna to a location only a few kilometres from the farm, poured petrol on it and set it alight. You had followed in another car. You assisted in setting the car alight and you drove Mr Lewis back to his farm.

17 Sometime later you both returned to the burnt out car, removed most of Bill's remains and disposed of them at another location. You remained with Mr Lewis for the next few days, living either at his farm or at Mr Stevenson's unit in Kerang.

18 On New Year's Eve, you went to Bendigo with Mr Lewis. At around 10.00pm, at Mr Lewis' suggestion, you threw the hunting knife into Lake Weeroona. You agreed with Mr Lewis that if interviewed by police, you would both stick to the same core lie, namely that you had no involvement in Mr Stevenson's death and you last saw him driving from Mr Lewis' property.

19 You were arrested in Kerang on 2 January 2014 and taken to the Bendigo police station. You initially stuck to the pre-arranged story and denied any involvement in Mr Stevenson's death. You then changed tack and as I have mentioned, cast all blame on Mr Lewis.

20 Your counsel, Mr Johns, advised the court in written submissions that you disputed several aspects of Mr Lewis' statement. I am satisfied beyond reasonable doubt of the truth of his account for the following reasons.

(a) After lying to the police during the initial phases of the interview, in a covertly recorded conversation, Mr Lewis provided police with essentially the same account that, in a more detailed form, became part of his witness statement.

(b) His evidence was tested by Mr Johns in a Basha inquiry. I formed a favourable view of his credibility and reliability.

(c) Mr Lewis' account is the only account that has been given in court on oath and tested in cross-examination. Your competing accounts were given in a witness statement and in the latter parts of your record of interview. By your plea, as I have said, you admit the falsity of those accounts. Further, in those accounts, you made no mention of your knife or the use to which it was put. Conversely, Mr Lewis described both the knife and its use in considerable detail. In his statement he described with some precision the part of the lake into which the knife was thrown. Police divers subsequently found the knife in that location. I regard this as significantly supporting his account.

(d) Police found human faeces in the area where Mr Lewis claimed to have defecated immediately prior to your attack on Mr Stevenson. This also offers some support for his account.

(e) Lewis directed police to where you both had scattered Mr Stevenson's remains.

The combination of these six factors and in particular factor (b) has led me to be satisfied to the criminal standard of Mr Lewis' account.

21 I regard your objective criminality or moral culpability as very high. I consider that you were the initiator and driving force behind this vicious thrill killing. Your counsel has submitted that your abuse of ice in 2013 was a central aspect of your offending. I am certain this is correct and it provides some explanation for what otherwise is inexplicable.

22 From your perspective, however, there is only so much comfort that can be derived from this. In my view, there are no exceptional circumstances that operate to reduce your moral culpability arising from your ice usage. If you are able to deal with your addiction, however, your prospects for rehabilitation will no doubt be greatly improved. The relationship between your drug use and the offending does not aggravate your criminality but neither does it mitigate it.

23 I must take a stern view of your cruel and senseless conduct. Murder is regarded as the most serious of all crimes because of the weight a civilised society gives to the sanctity of human life. You gave no weight whatsoever to the sanctity of Bill Stevenson's life. As I have said, I consider your objective criminality to be very high. This was a wicked crime.

24 You are now 37 years old. You are a mother of three. Your daughter, Aisha, is 19. You have had relatively infrequent contact with her. Your two boys, Mitchell and Nathan, 13 and 11, are cared for by your aunt. Their father is also in custody apparently due to be released this year.

25 You have not lived with these children for many years and in fact you are a respondent in an intervention order brought by the boys' carer. In the circumstances it is unsurprising that they are exhibiting behavioural problems. The term of imprisonment that I must impose will mean that these boys will be well into adulthood before you are released. I accept that missing out on their adolescent development may cause you some hardship and I take this into account.

26 You are of Aboriginal descent and were born in Echuca. Your brother, Adam, is three years younger than you and, I am told, is a law-abiding and responsible member of our community. Your childhood was unstable and you attended four primary schools as your family moved around Victoria.

27 I accept, while you were young, that you witnessed frequent physical violence directed by your father towards your mother. You became an unhappy and withdrawn child and by your teens you were diagnosed with depression. Your behaviour became rebellious and you spent some time in foster care as an early teenager. You left home at 15, travelled, and fell pregnant at 18.

28 You have used cannabis and alcohol since you were 14. To that you added heroin, and you became addicted to it by the age of 20. I am told, and accept, that you used it intravenously for many years. You also used amphetamines intravenously, and into your 30s began using ice. You have now been in custody and, I am told, drug-free for 512 days. I remarked during your plea that if this is correct it is almost certainly the longest period in your adult life in which you have remained drug-free.

29 Mr Johns provided the court with two psychiatric reports both prepared for court purposes. In 2007 you were facing the Magistrates' Court on various relatively serious driving offences and breaches of court orders. You apparently were admitted to the psychiatric hospital here in Bendigo in 2007 for six days after being arrested. This was your first psychiatric admission and it appears at that stage you were diagnosed as suffering from bipolar affective disorder. Your symptoms then appeared to be mostly of the depressive type with only mild mood elevation and without frank mania or psychoses.

30 Associate Professor Andrew Carroll examined you on 7 May 2015 at the Dame Phyllis Frost Centre. He reported to instructing solicitors for the purposes of this plea hearing. He noted that in 2012 you were admitted as an involuntary patient in a psychiatric ward in New South Wales. You were treated after initially appearing suicidal, medicated, seemed to become settled and released. You have never had sustained psychological treatment. There are various reported previous attempts at self-harm including, it appears, four suicide attempts.

31 You described your drug taking history to Associate Professor Carroll, including the assertion that you had spent essentially the whole of 2013 "off my head on ice." You provided your psychiatrist with an account of your actions during the murder of Bill Stevenson. You maintained that in fact it was Lewis who initiated the murderous assault by smashing a rock on Mr Stevenson's head. You told Associate Professor Carroll that you were shocked by this. You told him that you recalled holding a knife but could not remember how it got into your hand. You recalled "stabbing out," once only and denied repeated stabbing. You stated to your psychiatrist that you were afraid that either Mr Stevenson or Lewis would turn on you. You recalled Lewis driving the car after Mr Stevenson and then you asserted that it was Lewis that left the car and beat Bill with a piece of wood. You said that you were in shock.

32 For reasons that I have explained, I am satisfied beyond reasonable doubt of the reliability and accuracy of Mr Lewis' account. Regrettably, I regard your current account, given for the first time two-and-a-half weeks ago, as self-serving and dishonest. This account is unsupported by evidence and is the first time that you have conceded any part in the attack at all. In my view, you have attempted to shift as much blame as you could to Mr Lewis. Given those findings, I do not accept your professed "high level of remorse and regret" to Professor Carroll, which is linked to regret that you ever met Lewis (See Paragraph [83] of Professor Carroll's report), who you maintained was the initiator of the murderous assault.

33 Your two false accounts to the police, your third, I find, false account to your psychiatrist and your belated plea do not speak of remorse. Mr Johns, sensibly in my view, did not press remorse as a relevant sentencing factor in his very able plea on your behalf.

34 Associate Professor Carroll is of the view that you appear to be of above average intelligence and have difficulties with periods of depressed mood since childhood. He doubts that you genuinely do suffer from a bipolar depressive disorder. He does consider, however, that you suffer from a recurrent major depressive disorder, agoraphobia, substance dependence disorders and perhaps Borderline Personality Disorder. His opinion was: "There is no evidence that she was clinically depressed or suffering from any other features of active mental illness at the time of the offence."

35 Ultimately, on the history given, Associate Professor Carroll attributed your participation in the murder as resulting from ice abuse. As I have explained, this is not a fact that mitigates your criminal culpability to any significant degree.

36 I do take into account the circumstances of your social disadvantage, abuse and deprivation that characterised your formative years. They do not provide an excuse for your behaviour, but they explain your lifelong battle with depression and the refuge that you have sought in drugs. I will reflect your reduced childhood and adolescent circumstances in your favour in the factors that go to make up the sentencing mix.

37 I have read and listened to the victim impact statements. Mr Stevenson's family continue to grieve for a much loved member of their family.

38 The circumstances of his death compound their suffering and I take their suffering into account. You are entitled to some credit for your plea of guilty. As I have observed it came very late, only after a jury was empanelled and discharged. The fact remains however that the community has been spared the expense and inconvenience of a criminal trial and witnesses have been spared the ordeal of giving evidence at that trial. Your guilty plea entitles you to a utilitarian sentencing benefit and I shall reflect that in the sentence that I impose. In the circumstances I can distil no remorse from your plea.

39 In sentencing you, your position is, I consider, very different to your co-offender Mr Lewis. I am of the view that your criminal culpability is significantly higher than his. Additionally, in his case I found that he was remorseful and entitled to a large sentencing discount for his preparedness to give evidence at your trial. These factors greatly distinguish your respective positions.

40 Your prior criminal history also compares unfavourably to Mr Lewis'. You have a long but comparatively minor criminal history although it suggests a violent disposition. By my calculations, since 2001, you have five prior convictions for some form of assault and five prior convictions for some form of intentionally causing criminal damage. You also have several dishonesty convictions. All of these convictions were incurred in the Magistrates' Court and in none of them were you sentenced to a term of actual imprisonment.

41 I take the view that your prospects for rehabilitation are tied to your prospects for remaining drug-free. As I have already observed you are of above average intelligence. It seems that you have spent your time productively in custody and importantly remain drug-free. Your life was at such a low ebb that custody has actually improved its quality and you seem to have responded to that. I shall proceed on the basis that your prospects for rehabilitation are reasonable.

42 The murder of Bill Stevenson was savage, needless and cowardly. You taunted him in his dying moments. You must be punished and your conduct must be denounced. The sentence I impose will also reflect the need to deter others from carrying out similar wanton acts of great violence. I have not given the aspect of specific deterrence any weight in the sentence I will impose despite your prior convictions. By the time you are released you will be considerably older and hopefully considerably wiser.

43 On the charge of murder I sentence you to 21 years' imprisonment. I order that you serve 16 years, six months imprisonment before becoming eligible for parole.

44 I declare that 512 days inclusive of today have been served by way of pre-sentence detention. Pursuant to s 6AAA I declare that but for your plea of guilty I would have sentenced you to 23 years' imprisonment with 18 years to be served before parole eligibility.

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