R v Hutton
[2011] VSC 484
•28 September 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2010 0106
| THE QUEEN |
| v |
| STEPHEN ALBERT HUTTON |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September 2011 | |
DATE OF SENTENCE: | 28 September 2011 | |
CASE MAY BE CITED AS: | R v Hutton | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 484 | |
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CRIMINAL LAW – Manslaughter – 1985 offence – Paranoid schizophrenia – Mental illness materially contributing to offence – Custodial sentence required – Maximum penalty 15 years – No deliberate intent to kill – Case dependent on confessions volunteered – Plea of guilty – Moral culpability diminished – General deterrence of little relevance – Rehabilitation and protection of community dependent on mental health treatment – Effects of extradition and custody upon prisoner to date – Remorse – Prisoner’s acceptance of need for indefinite treatment – Non-parole period fixed to facilitate deportation – Four years’ imprisonment – Non-parole period of two years six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose SC | Craig Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr P Morrissey SC with Ms S Keating | Galbally & O’Bryan |
HIS HONOUR:
Stephen Albert Hutton, you have pleaded guilty to the manslaughter of Sandra White at Yandoit on 11 August 1985.
You were born on 11 March 1955 and you were accordingly 30 years old at the time you killed Miss White. She was only 34 years old.
You were born and raised in the United Kingdom. You had an uneventful and it appears happy childhood. After matriculation you qualified as an engineering technician with particular expertise in relation to sheet metal working. When you were 20 you set off travelling around the world on a working holiday. You worked in a variety of countries and came to Sydney. Unfortunately, serious mental illness then manifested itself. In 1979, you had your first recorded episode of florid schizophrenia. You were admitted to Rozelle Psychiatric Hospital as an inpatient for three months and prescribed Mellaril, an anti-psychotic drug. Tragically, as now is clear, you did not remain on continuing medication or active treatment through the 1980s.
In 1980, you moved to Melbourne and had a series of successful jobs in this State. It appears that you were a hardworking and peaceable member of the community.
In 1984, you purchased a house in Maryborough which you hoped your mother might come to live in. In 1984, you met Sandra White and developed a relationship with her. You helped Sandra construct a cottage on a bush block at Yandoit. She lived there with her son, Timothy, and you would visit Yandoit at the weekends.
On the last two days of Miss White’s life, you had come up to Yandoit to spend the weekend with her. The evidence of a number of witnesses makes clear that you were acting strangely. Whereas you are described as ordinarily being a quiet and somewhat withdrawn man, on Saturday 10 August 1985, Ms White was seen fleeing from you. She told a neighbour, Judith Cross, that you had held her hostage, forced her to drink champagne at breakfast time and chased her with an axe. Miss White appeared distressed and expressed fear of you and said you needed psychiatric help. Later that day she told Russell Groves she was frightened to go home. She also told Dennis Henderson in your presence that you were mad and had threatened her with an axe.
On the night of 10 August 1985, you attended a party in Daylesford and were observed by the hostess to behave strangely and repeatedly make persecutory and extreme statements. You told her that you had not slept for the previous four days.
On 11 August 1985, Peter Parsons describes you coming to his shop in Daylesford at about 10:00 am. His immediate impression was that there was something seriously wrong with you and that you were out of touch with reality. You were confused and incoherent. You switched between moments of lucidity and moments of extreme anxiety and fear. Whilst you were with Parsons, the police came to the shop and spoke to you because of fears as to your state which had been expressed by another shopkeeper. With hindsight, given the history of your mental illness, it is difficult to escape the impression that your behaviour was sending warning signals which received no adequate response.
Parsons rang Rodney Patterson, a social worker, and arranged for you to see Patterson. You visited Patterson at about 1:30 pm and he describes you as appearing highly confused, suffering, aggressive and very depressed and unstable. He was concerned you might become violent and convinced you to go to the Royal Hotel in Daylesford with a view to staying there overnight. You left at about 5:00 pm and went to the hotel.
At the hotel your demeanour was also observed to be strange. You drank there till about 8:25 pm and then went to the cottage.
The possibility of a detailed objective account of what then occurred almost certainly died with your victim.
You have, however, since 1990 made a series of confessional statements to mental health carers and police in which you describe strangling Miss White in anger after an argument in bed. Your accounts at various times refer to feeling that you were under the influence of an external force and feeling an electric current run down your arms. You have also said that you initially placed your hands around Miss White’s neck because she had a week or so previously placed her hands around your neck and you wanted her to find out what it was like.
After you realised Miss White was dead, you carried her body to a caravan and burnt the caravan, substantially destroying Miss White’s physical remains.
Although your accounts contain some bizarre elements, both with respect to your state of mind and aspects of the surrounding circumstances, they are fundamentally consistent with the circumstantial evidence as to the manner of her death. In particular, I am satisfied that you killed Miss White by strangling her and then burnt her body.
Your confessions demonstrate that you have understood and acknowledged responsibility for her killing at recurrent points of time over the last 20 years.
The evidence as a whole supports the view that you killed Miss White when affected by paranoid schizophrenia. That killing constituted manslaughter by unlawful and dangerous act. You engaged in an unlawful and dangerous assault upon a woman who had given you trust and affection. It cannot be inferred, however, that you had the intent to either kill or cause her serious injury because; first, it is apparent your mental faculty was clouded by schizophrenia; and secondly, you have never expressed any recollection of an intention to harm Miss White in the various confessions you have volunteered over many years in different situations.
I should add that the law presumes mental responsibility for criminal acts and it falls upon an accused to prove, on the balance of probabilities, that mental impairment should be regarded as a defence to a criminal charge. By your plea, you have acknowledged that despite the serious mental illness from which you were suffering at the time of Miss White’s killing, you were not mentally impaired, or in lay terms ‘mad’, in the sense which would establish a defence to the charge to which you have pleaded.
As a result of your actions, you robbed a 14 year old boy of his mother and blackened his perspective of the world at a vulnerable age. You took from him a loving parent whom he still misses as a fundamental element of his family life. You also took a dearly loved daughter from a loving mother and loved sister from her brothers. The victim impact statements which have been read and tendered to the Court express in heartfelt terms the lasting anguish your actions have caused them and the aching loss they still feel 26 years after Miss White’s death.
Miss White’s family have the satisfaction of knowing that their continuing pursuit of a full investigation of her death has ultimately brought you before the Court to face sentence today. Nevertheless, nothing that this Court, or indeed you, can now say or do can bring Miss White back to them.
In sentencing you, I must impose a punishment which is just in all the circumstances and which expresses and reinforces the community’s respect for the fundamental sanctity of life as a core value of our society.
Manslaughter is an offence which may be constituted by a variety of forms of criminal conduct. Insofar as your actions amount to unlawful and dangerous act manslaughter, I have reached the view that your offending cannot be regarded as falling at the lower end of the range of culpability and must require the imposition of a custodial sentence; first, because the killing of Miss White involved the direct manual application of extended violence by you to your victim; and secondly, because you incinerated your victim’s body after killing her.
On the other hand, there are a number of factors which favour the imposition of a lesser rather than a greater period of imprisonment by way of custodial sentence. At heart, these factors are grounded in the fact that yours is a tragic case in which both your conduct at the time of offending and your present situation must be viewed as materially influenced by the mental illness from which you suffer.
In my view, the most significant matters bearing on the penalty which I must impose are as follows.
First, at the time of your offending, the maximum penalty for manslaughter was 15 years’ imprisonment rather, than 20 years as it is now. Further, at the time of your offence sentences for manslaughter were generally significantly lower than they are today.
Secondly, the evidence does not establish that you killed Miss White with deliberate intent.[1]
[1]As in some categories of the offence eg that arising on a successful provocation defence to a murder charge at that time.
Thirdly, the case against you was critically based upon confessions volunteered by you. The circumstantial case was not regarded as strong enough to justify charging you after Miss White’s death. That judgment was made by experienced police officers and it is the evidence of your own subsequent confessions which has brought you before the Court.
Next, you have pleaded guilty. That plea must be regarded as having significant weight. First, because of the expense and difficulty which a not guilty plea would have occasioned the community (including the need to bring out witnesses from England). Secondly, because your plea has at last brought some closure to Miss White’s family in respect of the cause of her death. Thirdly, because by your plea you have foregone the opportunity to make legal challenges to the admissibility of your confessional statements in evidence and have also foregone the possibility of maintaining a defence of mental impairment. I should add that I accept Dr Walton’s evidence that the admissibility issue was potentially a very real one in your case because of questions relating to your mental condition both at the time of Miss White’s death and at the time of confessing. Accordingly, your plea has been made in circumstances where there were very real prospects you might have been acquitted if the matter proceeded. This adds substantially to the weight which I must give to your plea as a sentencing factor.
Fifthly, I accept that at the time of killing Miss White you were suffering from paranoid schizophrenia and that this condition did contribute materially to your offending. It is apparent that your emotional reactions on the weekend of Miss White’s death were not those of a normal person and that your mental processes were clouded by your illness. The history of your condition includes psychiatric hospitalisation in 1979 and, as I have said, the prescription of anti-psychotic medication which you had ceased taking. The longstanding and continuing nature of your illness confirms that it is both permanent and productive of florid symptoms in the absence of medication.
The fact that you were mentally unwell bears on a number of the factors which I am required by statute to have regard to in sentencing you. In a fundamental sense, the context of mental illness in which you acted as you did must be regarded as reducing your capacity for self-control and, in turn, your moral culpability.[2]
[2]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269, 274-275, [23]-[26]. (‘Verdins’)
In addition, your mental illness means that you cannot sensibly be regarded as providing a meaningful vehicle for general deterrence.[3] Whilst killings in a state of rage within domestic relationships are a continuing blight upon our society and the Court must express unqualified condemnation of them and the suffering which they cause, the reality is that your offending will be perceived by most in the community as a tragic outcome of your schizophrenia.
[3]Verdins, 271-274, [14]-[22].
Next, your mental illness bears on the issue of specific deterrence.[4] You had no prior criminal history before the killing of Miss White and have not engaged in subsequent offending. The protection of the public since you killed Miss White has been, and will continue to be, principally dependent upon your ongoing psychiatric care and compliance with medication.
[4]Verdins, 276, [32](4).
Sixthly, since 1990, now for a period of more than 20 years, you have been treated within the framework of the United Kingdom National Health System. It is apparent that, despite recurrent hallucinatory experiences and some episodes of florid psychosis, you have been able to live a controlled and non-violent life under that regime. If you were now able to return to Britain, you would resume living in a council flat close to your parents’ place of residence with established links to local mental health services and a long history of compliance with medication in that context. You would also have the ongoing support of your brother. It is difficult to escape the conclusion that this offers the best prospect of protection of the community both in this country and in your homeland in the long run.
Seventhly, you have been compulsorily extradited to this country for the purpose of prosecution in respect of Miss White’s killing. You have now been in custody for in excess of 900 days. I accept that that period of custody has been particularly difficult for you and more harrowing than that undergone by the ordinary prisoner on remand. It appears that, at least in part because of dietary difficulties, you refused medication for five months while in custody and became floridly psychotic. In turn you were transferred to secure custody in Thomas Embling Hospital on 16 February this year and have remained there since. This is, as Dr Walton stated, an unusually long period of custody at this facility for a prisoner on remand. It bespeaks the severity of your illness earlier this year. In consequence of that illness you were not fit to stand trial until recently and this matter has not been able to be brought to a conclusion before me with the speed this Court would ordinarily achieve. Further, I accept on the basis of the Forensicare reports filed with the Court over the last year, together with Dr Walton’s reports, that you have been suffering an illness which has been seriously distressing to you, both in grappling with the prosecution confronting you, and in terms of your everyday quality of life. I also accept your counsel’s submission that your extradition and time in custody has had a significant adverse effect upon your mental health. Custody has been, and will continue to be, unusually burdensome to you both because of your illness and because of separation from your family.[5]
[5]Verdins, 276, [32](5),(6).
Eighthly, you have expressed remorse for the killing of Miss White. The sense in which that can be regarded as reflecting a true acknowledgment of responsibility for what you did and the horrific consequences of your actions is, as Dr Walton says, complicated by your mental illness. Nevertheless, when your expressions of remorse are weighed together with your confessional admissions and your plea of guilty, they must be given some weight. I accept your counsel’s submission that you have had to live, and will have to live, with what you did and that you have expressed and feel an underlying remorse for Miss White’s death.
Ninthly, there has been significant delay in bringing this matter to closure since extradition proceedings were commenced. That delay, first in respect of extradition, and then in bringing this matter to trial, has arisen principally because of objective and legitimate concerns relating to your ongoing mental health. Although I have already referred to the burdensome nature of the period of custody you have already served, I also accept that the fact of delay and associated circumstances, involving extradition and disruption to your previously longstanding regime of treatment and medication, have occasioned you substantial ongoing stress and that factor must also be taken into account.
Tenthly, I accept the evidence of Dr Walton that you fully appreciate that you will require psychiatric treatment indefinitely and are a man of some intelligence with no evidence of cognitive deficit. These matters again favour the view that a further custodial sentence has no real relevance to your rehabilitation or the protection of the community. Those matters are critically dependent upon the continuation of appropriate psychiatric treatment.
Mr Hutton, taking the above matters into consideration and balancing the factors which I am required to consider, I propose to sentence you to four years’ imprisonment for the killing of Sandra White. I fix a minimum non-parole period of two years and six months.
You have been in custody since 6 April 2009 and I declare that you have already served 908 days in custody pursuant to section 18(4) of the Sentencing Act1991.
I declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty, I would in all the circumstances of this case have imposed a total effective sentence of six years' imprisonment with a minimum non‑parole period of four years.
The effect of my sentence is that you will be eligible for parole on 6 October 2011, that is Thursday next week.
In fixing the non-parole period, I have taken the view that the point in time has now been reached at which the Court should facilitate your deportation and the resumption of your ongoing treatment in the United Kingdom. This is a view which the prosecutor accepted in submission to me was open to the Court.
Nevertheless, the terms of your parole remain ultimately a matter for the exercise of independent discretion by the Parole Board.[6]
[6]R v Binder [1990] VR 563, 567-572; R v Shrestha (1990) 173 CLR 48, 72-73; Nguyen v The Queen [2010] VSCA 244, [15]-[17].
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