Kerr v R [2016] NSWCCA 218

Kerr v R [2016] NSWCCA 218

The sentencing judge did not err in considering the applicant's criminal history, traffic record and conditional liberty in the limited way identified; the findings that the collision was not caused by momentary inattention, that driving at about 70 kph near cyclists was excessive in the circumstances, that the distance and period of inattention were aggravating, and that moral culpability was above the lowest end were open. General and specific deterrence and partial accumulation for multiple victims were properly considered, and the aggregate sentence of 27 months with an 18 month non-parole period was not unreasonable or plainly unjust.

Jurisdiction
Australia
Judgment Date
07 October 2016
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['dangerous Driving Causing Grievous Bodily Harm' 'causing Bodily Harm by Misconduct' 'momentary Inattention' 'moral Culpability' 'prior Criminal History and Traffic Record' 'conditional Liberty' 'general Deterrence' 'specific Deterrence' 'accumulation and Totality' 'manifest Excess']
['criminal Law' 'sentencing'] ['dangerous Driving Causing Grievous Bodily Harm' 'causing Bodily Harm by Misconduct' 'momentary Inattention' 'moral Culpability' 'prior Criminal History and Traffic Record' 'conditional Liberty' 'general Deterrence' 'specific Deterrence' 'accumulation and Totality' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred in taking the applicant's previous unrelated criminal history into account." "Whether the sentencing judge erred in finding that the applicant's moral culpability was not at the lower end of the range." 'Whether the sentencing judge erred in finding that the applicant was driving at excessive speeds.' 'Whether the sentencing judge erred in finding that the length of the journey during which others were exposed was an aggravating factor.' 'Whether the sentencing judge erred in finding that the accident was not the result of momentary inattention.' 'Whether the sentencing judge erred in finding that specific and general deterrence were relevant factors.' 'Whether the sentencing judge erred in ordering partial accumulation of two months for each of Counts 1 to 4.' 'Whether the sentences imposed were manifestly excessive.']

Ratio Decidendi

The sentencing judge did not err in considering the applicant's criminal history, traffic record and conditional liberty in the limited way identified; the findings that the collision was not caused by momentary inattention, that driving at about 70 kph near cyclists was excessive in the circumstances, that the distance and period of inattention were aggravating, and that moral culpability was above the lowest end were open. General and specific deterrence and partial accumulation for multiple victims were properly considered, and the aggregate sentence of 27 months with an 18 month non-parole period was not unreasonable or plainly unjust.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant the applicant leave to appeal.' 'Appeal dismissed.']