STATE OF TASMANIA v KERRY LEE WHITING 27 JUNE 2024
COMMENTS ON PASSING SENTENCE JAGO J
Mr Whiting, a jury found you guilty of the crimes of murder and attempting to commit murder. As the charge of murder was submitted to the jury on alternate bases, it is necessary for me to make factual findings for the purpose of sentence. The findings are based on the evidence presented at trial. I may only make findings adverse to you if satisfied beyond reasonable doubt they have been proved, and I may only make findings of fact in your favour if they are proved on the balance of probabilities. I say now the evidence overwhelmingly satisfies me beyond reasonable doubt that you intended to kill both Adrian Mayne and Natalie Harris when you entered their bedroom in the early hours of the morning of 25 November 2021 and stabbed Mr Mayne 20 times and Ms Harris 27 times.
Ms Harris is your ex-partner and the mother of your children. Mr Mayne was her new partner. As at 25 November, Ms Harris had separated from you and shared her new home with Mr Mayne, her partner of about four months, and two of your children, T aged 16 and K aged 14. I am satisfied these crimes were the consequence of your controlling, possessive and jealous attitude towards Ms Harris. You were not willing to allow her to move on in her life and you resented the presence of Mr Mayne in your children’s lives. So you determined to kill them. Tragically, you achieved that in respect to Mr Mayne, but your plan was thwarted in respect to Ms Harris by the brave and desperate actions of T who was awoken by the screaming and intervened, dragging you away from his mother. That, and the first aid he later provided to his mother, undoubtedly, in my view, saved her life.
The background to your heinous crimes is as follows. You and your ex-partner had been in a relationship for approximately 20 years. During the relationship you had often been abusive and violent. Ms Harris described the relationship as one of physical, verbal and emotional abuse. There were many arguments in which you would verbally abuse her. On occasion you would physically assault her, including pushing her against a wall, pushing her against a weight bench and, on one occasion, grabbing her around the throat. You would criticise her housekeeping and become angry if she did not do as you expected, such as having a meal on the table as and when you demanded it.
In June 2021, unknown to you, Ms Harris made arrangements to obtain independent accommodation and Ms Harris, T and K moved out shortly after. Initially, you appeared to be accepting of Ms Harris ending the relationship. You assisted her in moving some furniture and hung some blinds at the new house. Within a short space of time, however, you were putting pressure on her to resume the relationship. She asked you to stop coming to her new home. She said she would call police if you continued to do so. You told her that if she contacted police, you would “kill her”.
Soon after moving out, Ms Harris met Mr Mayne online. They quickly developed a relationship. By the time these crimes occurred, he was living with her in Launceston. Initially, you were unaware of the relationship. You found out about it approximately two weeks before these crimes were committed. You were angry about it, and you expressed that anger to others, in particular, your children. You told Z, the eldest child of your relationship with Ms Harris, that you did not like Mr Mayne and he was “going to get it”. On another occasion when K was present at your home, she heard you say that you were going to “hurt him [Mr Mayne] really bad” and that he “was going to have the worst day of his life”. She heard you say that you were going to kill Adrian Mayne. You told T that Adrian Mayne was “dangerous” and made threatening comments about him.
Despite your denials in evidence that these conversations occurred, I am satisfied beyond reasonable doubt that they did. In my view, the evidence you gave in Court denying them was entirely unbelievable. I am satisfied the comments were made to your children, and the sentiments expressed were reflective of your anger and jealousy; the catalyst for these crimes.
On 19 November 2021, so about a week before the crimes were committed, I am satisfied you entered Ms Harris’s home somewhere between 11pm and 1.30am, whilst Ms Harris was out collecting T from work. K was at home by herself. You entered through the laundry window. K heard you and found you in the laundry. You told her to go back to bed and she did. Whilst I cannot conclude that at this point you had any intent to cause harm to anyone, I am satisfied beyond reasonable doubt that this behaviour was indicative of your want to exercise control over Ms Harris and ascertain what she was doing and with whom she was spending time.
On the afternoon of 24 November you pumped up a tyre on a bicycle that was in the front yard of your residence. You later rode this bicycle to Ms Harris’s home when you committed the crimes. I cannot say I am satisfied to the requisite degree that at the time you pumped the tyre you had in mind attending Ms Harris’s residence to kill her and Mr Mayne, but as noted I am satisfied beyond reasonable doubt that by the time you entered Ms Harris’s home, that was your firm intention.
You left your residence on the bicycle at about 1.35am. You entered Ms Harris’s home somewhere between 3am and 3.30am. The evidence satisfies me that you went straight to the main bedroom where Mr Mayne and Ms Harris were sleeping. There was no evidence to suggest anything in the house had been disturbed, other than in the areas where your brutal attacks occurred. I am satisfied that upon entering the bedroom, you immediately started stabbing Mr Mayne. He was in the bed and you launched an attack on a vulnerable and defenceless person. I am satisfied he would have awoken to you already stabbing him. He had no opportunity to defend himself as evidenced by Dr Lawrence’s evidence that he found no defensive injuries on Mr Mayne’s hands or arms during the autopsy.
Once woken by your attack, I find Mr Mayne’s concern was to try and protect Ms Harris. He threw himself over her body and was yelling at you “Don’t stab her”. It was those words which awoke Ms Harris. When she woke Mr Mayne was laying over her. You commenced attacking Ms Harris. She got out of the bed and you continued stabbing her. At one point when you were attacking Ms Harris, she said to you “Why are you doing this”. You responded by saying “You caused this”. Her screams woke T and K. Whilst K did not come out of her bedroom, she was well aware that a brutal incident was occurring within the home. At one point, she peaked out of her bedroom door and saw blood on the walls.
T came out of his bedroom and saw a person attacking his mother. He pushed the person off his mother and then pulled the person towards him. It was at that point T realised it was you, his father, who was attacking his mother. He grappled with you. Even after his intervention, you continued to stab Ms Harris. T saw you stab her to the neck area. He continued to grapple with you. Eventually, Ms Harris made her way to the bottom of the stairs near the front entry. You and T also ended up in this area. T pushed you up against a wall and challenged you. He told you to drop the knife. He said he would grab the knife and hurt himself if you did not drop it. At one point he said to you “You’re my Dad, why are you doing this…I don’t ever want to see you again…” You replied “Oh, it’s not like you message me anyway”.
This evidence, in my view, is indicative of the callous arrogance and controlling nature you displayed. Ms Harris and your children were not behaving as you expected them to, so you inflicted extreme violence upon them. It was apparent from a number of comments you made in the lead up to the crimes and at the scene, that you harboured considerable resentment towards you ex-partner because of the breakdown of the relationship and the impact it had upon your relationship with the children. You unjustifiably blamed her for the situation and you were determined to impose the ultimate punishment upon her irrespective of the harm and trauma it caused to your children. It is difficult to envisage a more arrogant and cold-hearted act.
You left the residence, taking the knife you had used with you. As I will come to, you did not return home, but went into hiding, fully aware of what you had done. T called triple zero. Whilst awaiting the arrival of emergency services, he bravely provided his mother with first aid and performed CPR on Mr Mayne. When police arrived, T immediately identified you as the perpetrator as did Ms Harris who was lying in the front entry, very badly injured and struggling to breathe. She was nevertheless determined to convey to police who was responsible for the attack. You claimed in your evidence that it was not you in the house and that this was a case of “mistaken identity”. Consistent with the jury verdict, I am satisfied beyond reasonable doubt that you committed these crimes. The evidence that it was you was overwhelming and your suggestion that your ex-partner and own child would not recognise you was, quite frankly, fanciful.
Ms Harris was taken to hospital. Sadly, Mr Mayne died at the scene. Because of a comment made by T in his impact statement I pause to note that there was nothing more he could have done to save Mr Mayne. His bravery in intervening in this incident and his calmness and stoicism in administering first aid, should be noted. But for his intervention, the end outcome for Ms Harris would almost inevitably, in my view, have been fatal.
Ms Harris’s wounds were life threatening. Surgery was necessary. She had lost a considerable amount of blood. Five units of blood transfusion and one unit of plasma were required to stabilise her. Two muscles in her forearm had been completely severed and required re-attachment. There was a fractured rib and a small area of collapse to the right lung. There was internal bleeding which had caused a haematoma which was compressing her breathing structure. If this had not been treated surgically, it is likely it would have expanded and ultimately compressed her lungs. She was in intensive care for a period of about six days.
Her victim impact statement indicates she has been left with much residual scarring which troubles her. She experiences pain in her right hand, which prevents her from carrying out simple daily tasks. Of course, the physical consequences of your crime upon Ms Harris are only a small component of the harm that you have caused. She has suffered severe emotional and psychological trauma. She experiences nightmares, is hyper vigilant and anxious, yet emotionally often feels numb. She feels responsible for Mr Mayne’s death and struggles to come to terms with his loss. She has issues trusting others. She struggles to comprehend how the father of her children could inflict such trauma upon them. Ms Harris also describes the difficulties associated with giving evidence. She found it overwhelming and “re-traumatising”.
T has been terribly affected by these crimes. The trauma of having to provide first aid to Mr Mayne and his mother will stay with him forever. He experiences flashbacks and nightmares and struggles to comprehend how his father could willingly expose him and K to such violence. His impact statement eloquently describes the profound and life-long impact these crimes have had upon him, but also his determination to not allow your cowardly acts to define him.
I also note the psychological impact these crimes have had upon K. K has autism and she has had difficulty in processing her emotions and understanding the enormity of what occurred. She finds it too traumatising to talk about. She often becomes irritable and short-tempered. Her mother describes her as “not smiling anymore”.
Z has also been badly impacted by your crimes. She experienced anxiety, hyper vigilance, many “dark thoughts” and mixed emotions which she struggled to reconcile. Whilst she is starting to move forward, it is likely the trauma she experienced will re-emerge at some point. Watching Z, T and K struggle with the consequences of your crimes has, of course, exacerbated the trauma for Ms Harris.
Self-evidently, the murder of Mr Mayne has had a devastating impact upon his family. I have read and carefully considered the impact statements of his mother, brother and sister. Their lives have been irretrievably damaged. Their sense of sadness and loss is overwhelming. They have all experienced sleepless nights and intense periods of grief, and at times, anger. Family occasions which used to be filled with happiness are now sad.
The impact crimes of this nature can have on emergency service workers should also not be overlooked. The police and paramedics who attended were confronted by a horrific scene and even experienced emergency personnel can suffer psychological harm and distress as a consequence.
There are a number of aggravating factors associated with these crimes. They were pre-meditated, and once committed you went into hiding for several days, exacerbating the fear your surviving victims felt that you may return and cause further harm. These were selfish, brutal and callous crimes committed by you because you had no other way of exerting control over your ex-partner. It was family violence of the most extreme kind. In my assessment, you were incredibly possessive and jealous. You could not accept the idea that Ms Harris was moving on, so rather than allowing her to exercise her right to live as she wished to, you exercised extreme violence in an endeavour to end her life and the life of her new partner. You obviously caused the death of one of your victims and considerable and permanent harm to the other. Even when T intervened, you did not desist. Your victims were vulnerable and unable to defend themselves. You launched your cowardly attack whilst they were sleeping. The crimes were committed in circumstances where you knew two of your children were living in the house and you showed no care or regard for the impact your crimes would have upon them. Ms Harris and the children were entitled to feel safe and secure in their new home, but you invaded that security in the most dreadful way. These crimes involve a terrible breach of trust, to both your children and your ex-partner.
Family violence is an insidious problem within our community and demands condemnation. There is a clear need for the denunciation of violent manifestations of possessive, controlling and jealous behaviours following the breakdown of relationships. There can be no tolerance for men who seek to extend their want for control over relationships in such an extreme and tragic manner.
You are 47 years of age. You have some prior convictions but nothing that attracts weight in the sentencing exercise, given the severity of this criminal conduct. You had an uneventful upbringing until you were 13. Your parents separated at that point and you did not see your mother for several years. It has adversely impacted the nature of the relationship you share with her, and you have struggled with feelings of abandonment. Your father, with whom you lived, operated a wood selling business which necessitated him leaving you to go wood cutting for extended periods of time. You were frequently left to fend for yourself and to make your own care arrangements from an early age. It meant you often did not go to school. On the occasions that you did, you were subjected to bullying. You grew up without a strong friendship group and spent considerable periods of time alone. When you were old enough, you joined the family wood selling business. You spent considerable periods of time alone out in the bush. You struggle with social settings and have had difficulty in finding your place in society as an adult.
Your father died several years ago. It had a significant impact upon you because you and he became close during the time you spent together gathering wood. After his passing, you continued with the wood cutting business and also undertook other work including truck driving. You were proud of the fact you were able to obtain financial security. Since your remand in custody, all of your assets have been sold and you are now impecunious. You have had no ongoing contact with your children since your remand in custody. This is upsetting to you but, of course, is entirely of your own making.
You have shown no remorse for your behaviour. You have shown no contrition for the impact of your actions on your victims and others, including your own children. You have taken no responsibility for what occurred. Of course, you are not to be punished for exercising your right to plead not guilty, but neither are you entitled to the mitigatory effect of a plea of guilty.
These were appalling crimes, significantly aggravated by the presence of your children when you committed them. Sentencing courts have a duty to respond strongly to this type of violent, controlling and possessive behaviour. Denunciation and general deterrence are fundamental sentencing considerations. In all of the circumstances, the only appropriate punishment is a lengthy sentence of imprisonment. In my view, it is appropriate to impose one sentence given the circumstances of your criminal conduct. That sentence should reflect the separate harm you caused to each of your victims and the sanctity of human life. Principles of totality and proportionality will be taken into account.
Kerry Lee Whiting, you are convicted of the crimes of which you have been found guilty. You are sentenced to 38 years’ imprisonment to commence on 2 December 2021. I order that you not be eligible for parole until you have served 24 years of that sentence.