By Paul Gregoire and Ugur Nedim
On 16 March 2014, Thomas Kerr was travelling in his black 4-wheel drive northbound along Southern Cross Drive in Eastlakes, when he ran into the back of seven cyclists from the Eastern Suburbs Cycling Club.
It was a dry day, with clear visibility, and Mr Kerr had been traveling in the first lane.
Several cyclists suffered serious injuries, and all except one were taken to St Vincent’s and St George Hospitals in ambulances. At the time of the collision, the cyclists had been riding in peloton formation, where they regularly overtake one another.
After testing negative to alcohol, Mr Kerr said in a police interview that he remembered rounding a corner before hearing a loud thump. He noticed a cyclist on the bonnet of the car and slammed on the brakes.
“A bit fast, a little bit erratic”
Mr Stuart Whyte was driving in front of the cyclists at the time. He observed Mr Kerr’s car careen through the group “like a tenpin ball through a set of skittles.” The eyewitness stated that two bikes went over the top of the car, two went on either side, and one cyclist landed on the hood.
Mr Whyte did not recall Mr Kerr’s car changing lanes prior to hitting the cyclists, nor did he see the car veer.
Mr John Umay was traveling in another car, which was set to cruise control at 80 kph. He said this was moving faster than Mr Kerr’s car, which was almost parallel at the time of impact. The witness said Mr Kerr did nothing to brake or move around the cyclists.
The substantial injuries suffered by four of the cyclists led to multiple charges involving grievous bodily harm being laid against Mr Kerr. The injured men were aged between 48 and 67, and their injuries ranged from a nasal bone fracture to multiple rib fractures and a major spinal injury.
In the District Court
Thomas Kerr appeared before the NSW District Court in 2015.
He pleaded guilty to four counts of dangerous driving causing grievous bodily harm contrary to section 52A(3)(c) of the NSW Crimes Act 1900, and three counts of furious driving contrary to section 53 of the Act.
The former offence carries a maximum penalty of seven years imprisonment, whilst the latter carries up to 2 years.
During the sentencing proceedings, Mr Kerr’s lawyers submitted that their client had only taken his attention away from the road momentarily, leading to the collision. The prosecution countered that it was either a longer period of inattention, or Kerr simply did nothing to move away.
NSW District Court judge Brian Knox noted that Mr Kerr had a prior conviction for affray, for which he receive a community service order. He had another prior conviction for aggravated robbery, for which he was still serving a two year intensive correction order at the time of the incident.
His Honour also expressed concern regarding Kerr’s driving record, as he had previously been disqualified for driving under the influence and had incurred a number of other driving infringements.
The sentence and its considerations
The judge found that Kerr’s criminal and traffic record were relevant in the sentencing process. He also remarked that the ultimate penalty must reflect the injuries caused.
The evidence established that Mr Kerr was traveling at 70 kph at the time of the accident, whilst the cyclists were traveling at about 32 kph. The speed of Mr Kerr’s vehicle was unsafe in the presence of the cyclists.
His Honour found that the cyclists must have been visible for at least 300 metres, after the last bend in the road, which would have taken 17 seconds to travel. He agreed with the prosecution that there must have been more than just a fleeting moment of inattention.
He noted that both personal and general deterrence were relevant in the present case.
In relation to personal deterrence, the judge remarked that Kerr had had a “casual attitude to the law and its applicability to him.” On general deterrence, His Honour noted that law-abiding cyclists had a right to use the road, and a message should be sent to motorists that they must keep an eye out for them.
“I regard this as being more than a case of momentary inattention,” His Honour found. “I assess the criminality to be above the bottom end of the spectrum, although closer to the lower end, than the higher end.”
Mr Kerr was ultimately sentenced to 27 months imprisonment, with a non-parole period of 18 months.
The sentence comprised 21 months imprisonment for each of the four counts of dangerous driving, with a partial accumulation of 2 months for each.
For each of the three counts of furious driving, the judge sentenced Kerr to 9 months, to be served concurrently with the dangerous driving sentences and each other.
The sentence incorporated a 25 percent discount for Mr Kerr’s early pleas of guilty.
In the NSW Criminal Court of Appeal (NSWCCA)
Mr Kerr appealed his sentence to the NSWCCA, which heard the matter in July last year. His lawyers relied on eight grounds of appeal.
One of those grounds was that the sentencing judge had made an error by taking into account Mr Kerr’s criminal history during the sentencing process. In that regard, Chief Justice Tom Bathurst noted that Judge Knox had not considered his history to be a separate aggravating factor, but a matter to be considered in the overall sentencing process. Justice Bathurst found no error in this approach.
The justice also noted the sentencing judge had considered the fact Mr Kerr was under an intensive correction order at the time of the incident as an aggravating factor, and found he was correct to do so.
Other grounds of appeal included that the sentencing judge had erred in finding that:
- The criminality was above the bottom end of the spectrum,
- Mr Kerr was driving at an excessive speed,
- The duration of time the cyclists were visible was an aggravating factor, and
- The accident was not a result of momentary inattention.
Justice Bathurst dealt with these grounds together. His Honour found the sentencing judge was correct in finding that the accident was not due to momentary inattention, as the evidence established that Mr Kerr could or should have known about the cyclists for some distance prior to the collision.
His Honour also found that despite the fact Kerr was travelling under the speed limit, the sentencing judge’s finding that this was excessive in the circumstances was not an error. Nor was the judge wrong in considering a 300 metre stretch where Mr Kerr drove without regard for the cyclists to be an aggravating factor.
Considering the manner of driving, Chief Justice Bathurst remarked, “it does not seem to me that the sentencing judge erred in concluding that the applicant’s moral culpability was not at the lowest end of the range.”
Mr Kerr’s lawyers also argued that the sentence judge was wrong not to run all of the penalties entirely concurrently, as they all related to the one event. However, Justice Bathurst found no error in this approach.
“The sentencing judge was correct in considering that a measure of accumulation was necessary to meet the separate injuries of the victims”, His Honour remarked.
Mr Kerr’s defence team argued that, all factors considered, the overall sentence imposed on their client was “manifestly excessive”.
Noting that the NSWCCA “will only intervene if the sentence is unreasonable or plainly unjust”, His Honour came to the conclusion that “… the sentence was not manifestly excessive”.
The appeal was therefore dismissed.