R v Raquel Hutchison

[2019] NSWSC 25

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Raquel Hutchison [2019] NSWSC 25
Hearing dates:	29 November 2018
Decision date:	31 January 2019
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Sentenced to imprisonment for 9 years with a non-parole period of 5 years and 6 months.
Catchwords:	CRIMINAL LAW – sentencing – manslaughter – excessive self-defence – substantial impairment – brutal and premeditated attack by offender on her ex-husband – intention to inflict grievous bodily harm formed after attack commenced – subjective belief actions necessary to protect children – objectively unreasonable and disproportionate response – chronic mental health issues arising from early child sexual assault – where matters taken into account in reducing homicide from murder to manslaughter – aggravating features – offence committed in presence of young child – offence in the victim’s home – impact on family members – devastating impact – where mother kills children’s father – children sad lonely and confused – early offer to plead guilty – good prospects of rehabilitation – special circumstances – objectives of sentencing – relevance where offence “exquisitely idiosyncratic”
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) s 25C Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A and 28(4)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Imnetu v Regina [2006] NSWCCA 203 R v Bloodsworth; R v Errington (No 5) [2018] NSWSC 79 R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535 R v Do (No 4) [2015] NSWSC 512 R v Halloun [2014] NSWSC 1705 R v Hines (No 3) [2014] NSWSC 1273 R v Hutchison & Wilkinson [2018] NSWSC 1759 R v Sumpton (No. 4) [2015] NSWSC 684 R v Tarrant [2018] NSWSC 774 R v TP [2018] NSWSC 369 Regina v Israil [2002] NSWCCA 255 Ryan v Regina [2017] NSWCCA 209 Sumpton v R [2016] NSWCCA 162 Villalon v R [2015] NSWCCA 229
Category:	Sentence
Parties:	Regina Raquel Hutchison
Representation:	Counsel: M Cunneen SC (Regina) B Rigg SC (Ms Hutchison)   Solicitors: Director of Public Prosecutions (Regina) Blair Criminal Lawyers (Ms Hutchison)
File Number(s):	2014/00308895
Publication restriction:	See R v Hutchison, Wilkinson & Greentree (No 3) [2018] NSWSC 1758. Suppression order over the surname of the deceased and the children who gave evidence in the trial. Pseudonyms to be used.

Judgment

1. Raquel Gaelle Hutchison is to be sentenced for the unlawful killing (manslaughter) of her former husband, Brett Walker. Ms Hutchison and her co-offender, Paul Wilkinson, were tried together by Judge alone and verdicts of manslaughter for both offenders were returned on 16 November 2018. [1] The circumstances of the killing are set out in my judgment explaining the reasons Ms Hutchison was found not guilty of murder, despite having formed an intention to inflict grievous bodily harm. The judgment also explained the bases upon which she was guilty of manslaughter.

   1. R v Hutchison & Wilkinson [2018] NSWSC 1759.

2. The details of the killing of Mr Walker are chilling and the brutality involved in the crime is disturbing. The treatment of the deceased’s body after he died demonstrated a callous disregard for his dignity. This is a very serious instance of manslaughter. It involved a specific intention on Ms Hutchison’s part to inflict grievous bodily harm. The crime was aggravated by the degree of planning and deceit involved, the fact that the brutal assault occurred inside Mr Walker’s own home and in the presence of a young child.

3. In a nutshell, Ms Hutchison lured her ex-husband to his townhouse in St Marys, which she had unlawfully entered earlier in the day, with the intention of visiting violence upon him to extract a confession that he had abused or mistreated their two children. One of those children, a then nine-year-old boy, was present in the house and heard and bore witness to a number of the events leading to his father's death. That little boy was an important witness in the prosecution case although parts of his evidence could not be relied upon. I am satisfied that the offender, the child’s mother, exposed him to the extreme brutality of the assault and killing of his father. My observations of the child when he gave evidence and read his victim impact statement satisfied me that he has suffered, and continues to suffer, grave emotional and psychological damage as a result of this experience.

The facts

4. Through a series of text messages, the offender tricked her ex-husband to return to his home unaware that she was lying in wait for him inside the townhouse. Ms Hutchison prevailed upon her new fiancé (Mr Wilkinson) to participate in the offence. Initially, he waited outside and acted as a lookout to alert the offender when Mr Walker arrived home. However, once Mr Walker was inside the townhouse, Mr Wilkinson joined the offender and played some role in the violence that followed. The precise roles of the two perpetrators are not known. However, I found in the course of the Judge alone trial, and remain convinced, that the major perpetrator of the violence was Ms Hutchison herself. This was borne out by the injury to her hand, the fact that she was wearing a ring or rings capable of inflicting some of the cuts evident on Mr Walker's body on post mortem examination, and the evidence establishing that Ms Hutchison had come to despise Mr Walker, largely as a result of the fact that he had custody of their two children.

5. Mr Walker was struck and punched many times resulting in severe blunt force trauma, particularly to his face. He sustained a broken nose which compromised his ability to breathe. There was also evidence that an electrical prod or Taser of some kind was used in the course of the assault. Whether this was used to incapacitate Mr Walker or as a method of torture to extract a confession is not known. What is known is that the use of the electrical prod demonstrated a significant degree of planning and an indifferent attitude to the suffering of the victim. “Exit Mould” was also used to blind or incapacitate Mr Walker. The basis of these findings can be seen in my earlier judgment on liability and it is unnecessary to restate the evidentiary bases upon which I came to these factual conclusions.

6. At some point, after his nose had been broken, Mr Walker aspirated food into his lungs and at around that time a ligature was applied to his throat. The pathological findings do not suggest that the ligature was applied with very much force. However, it was applied with enough force that, in combination with the aspirated food in his lungs and the restriction of his airways through the broken nose, Mr Walker died of asphyxia.

7. It was not completely clear when Mr Walker died. However, I found that he probably was dead before his body was removed from the townhouse by Ms Hutchison and Mr Wilkinson. It may have been that he was unconscious but still alive when, about 30 minutes after arriving home, his body was put in the boot of Mr Wilkinson's car and hidden from view.

8. There was an element of panic in what occurred thereafter. The couple, along with the small boy and the body in the boot, drove to a friend's house in Minto looking for some assistance to dispose of the body and, whilst there, took the opportunity to smoke some methylamphetamine. The occupants of the premises, far from assisting, told the two offenders to leave. They returned to Mr Walker's premises where they picked up the unknowing and unsuspecting, then 12-year-old, April. She was not aware that her father was dead in the boot of the car. She had no idea what was going on, the tragic loss she had suffered, or the turmoil that was about to impact on her young life.

9. After a rudimentary and chaotic attempt to clean up the premises the two offenders made arrangements for a friend from the Central Coast to meet them at Wisemans Ferry. The purpose of this arrangement was to allow the friend to take the two children back to the Central Coast, where Ms Hutchison and the friend were neighbours (Family Court orders then in place required Ms Hutchison to drop the two children at school and they would remain in Mr Walker's care through the week.) After the friend drove the two children away, the two offenders dumped Mr Walker's body on the side of a dirt road about 20 km north of Wisemans Ferry.

10. At no stage during the assault or in the hours thereafter did either of the offenders show the slightest remorse or interest in the dignity of their victim.

11. Mr Walker’s body was located by a passer-by early the next day and a police investigation commenced which rapidly led to the arrest of both offenders.

The basis of the offender’s liability

12. Ms Hutchison was charged with murder. In the course of 2015, and before the case had left the Local Court, she made an offer to plead guilty to manslaughter on whatever basis the Director of Public Prosecutions thought appropriate. Presumably, the possible bases were manslaughter by unlawful and dangerous act, manslaughter by excessive self-defence, and murder reduced to manslaughter as a result of substantial impairment. The offer to plead guilty to manslaughter was rejected and the case ran a slow course through the legal system and finally was resolved by the judgment and verdicts entered on 16 November 2018.

13. I concluded that neither Mr Wilkinson nor Ms Hutchison intended to inflict grievous bodily harm or to kill Mr Walker prior to entering the townhouse.

14. In Mr Wilkinson's case, I was not satisfied beyond a reasonable doubt that he ever formed an intention to kill or inflict grievous bodily harm. However, he was guilty of manslaughter by means of an unlawful and dangerous act and his participation in the joint criminal enterprise to enter unlawfully the house and to inflict at least some violence on Mr Walker in order to extract a confession.

15. I found that Ms Hutchison was the prime mover behind the entire enterprise. There was a solid body of evidence showing that she was extremely angry and full of hate when it came to her ex-husband. She entered the townhouse first and lured the unsuspecting victim back to his own home where he was to suffer an undignified, untimely, and horrible death. It was Ms Hutchison who inflicted the vast number of injuries that caused his death. Based on things she said to the psychiatrist, I am also satisfied that it was her that applied the ligature to the throat of Mr Walker; the act which most likely killed him. I make that finding in spite of some marks on Mr Wilkinson's hands, which may have been caused in any number of ways including through the application of a ligature in the manner alleged by the Prosecutor. However, the preponderance of evidence supports the proposition that it was Ms Hutchison who committed the final, fatal act.

16. As a result I was, and remain, satisfied beyond reasonable doubt that whilst the assault occurred, all of the hatred and rage exemplified in months of text messages and other evidence boiled over and Ms Hutchison formed an intention to inflict grievous bodily harm on her ex-husband. In spite of the finding that the offender had formed a murderous intent, I was not satisfied beyond reasonable doubt that the Prosecutor had disproved the subjective element of self-defence. That is to say, I held there was a reasonable possibility that in her compromised mental state, and in view of certain allegations that had unquestionably been made by her son and possibly by her daughter, Ms Hutchison genuinely believed that it was necessary to do what she did in order to protect her children. However, I was satisfied beyond reasonable doubt that her actions were excessive from an objective point of view. Her actions were not a reasonable response to the circumstances as she perceived them to be. It was for that primary reason that I found her not guilty of murder but guilty of manslaughter by excessive self-defence.

17. I recorded my finding that I was satisfied that Ms Hutchison had also established, on the balance of probabilities, a defence of substantial impairment. This would have reduced her liability from murder to manslaughter, had murder otherwise been established. The basis of this finding was the chronic and severe combination of mental health issues of which there was ample evidence in the trial. I was satisfied that her capacity to control herself and to judge right from wrong was substantially impaired and that the impairment was so substantial that, on the application of community standards, as I understand them, liability should be reduced from murder to manslaughter. Critical to that assessment was the fact that many, if not all, of Ms Hutchison's psychiatric illnesses resulted from her being subjected to horrendous childhood abuse including sexual abuse at the hands of her step-father.

The devastation left behind

18. It is important to acknowledge the devastating impact that the crime has had on Mr Walker's immediate family as well as many others in the community. I was privileged to hear a number of his family members read their victim impact statements. To each and every member of the Walker family, I express the Court’s deepest sympathy. I thank each of them for the courage and dignity they showed in reading their statements to the Court. As I said at the time, nothing I do in sentencing Ms Hutchison can repair the damage that has been done. The Prosecutor made an application that the extent of the harm done to the family was an aspect of harm done to the community and that I would find that the nature of that devastation was such that it should impact upon the proper sentence to be imposed. [2] The way in which the law allows this to happen has been considered in a number of cases and I approached the matter in accordance with the earlier authorities. [3]

    2. Crimes (Sentencing Procedure) Act 1999, s 28(4).

    3. R v Hines (No 3) [2014] NSWSC 1273 at [77]-[85]. See also R v Do (No 4) [2015] NSWSC 512 (Davies J); R v Halloun [2014] NSWSC 1705 (McCallum J); R v Sumpton (No. 4) [2015] NSWSC 684 at [36] – [44]; Sumpton v R [2016] NSWCCA 162.

19. The evidence tendered on sentence, unlike the evidence tendered in the trial, provided some real insight into the type of man that Mr Walker was. Contrary to Ms Hutchison's beliefs, Mr Walker was a valuable member of the community and a much loved son, nephew, brother, and father. The nature of his employment spoke volumes of his common decency and humanity. He worked as a carer where he met his de facto partner Maryam. Maryam read a victim impact statement to the Court. The death of her partner has truly devastated her. She is lost and helpless in her grief.

20. Both of Mr Walker’s parents read statements to the Court. They noted the extent to which Brett had in fact attempted to assist the offender in dealing with her various difficulties. They, along with all of the other people left in the wake of devastation caused by the offender, do not want to be treated as victims. What was remarkable about their testimony was the almost complete lack of anger and bitterness. This speaks eloquently to the family and moral values which were instilled in Brett as he grew up. Those values no doubt account for the work he chose to do, which involved selflessly helping others less fortunate than himself. Apart from his vocation as a carer, he also undertook voluntary work from the time he was a young man, including serving at soup kitchens, being a passionate supporter of World Vision and receiving awards handed out by the Rotary Club. Even as a young man he made repeated telephone calls to a highly respected media personality’s late night radio show to express his views about important issues of social justice. Mr Philip Adams referred to him as a “13-year-old insomniac".

21. I also heard from Mr Walker's sister and brother as well as his aunt and uncle. [4] His sister Amanda and her husband have taken care of his two children and she provided an eloquent account of the devastating impact that his death has had on them. The children are lucky to have Amanda and her partner in their lives. They have been provided with a happy, healthy and nurturing environment in which to grow up in the aftermath of the terrible events of 2014.

    4. The aunt and uncle do not fit the definition of “member of the primary victim's immediate family" in s 26 and while they were permitted to read the statements, they cannot be taken into account in the same way as those read by Mr Walker’s immediate family.

22. It was incredibly moving for everybody present in court when these statements were read, but the statements of the two children were almost too much for anybody to bear. Both Toby (now aged 13) and April (now an impressive young woman in her late teens) spoke with courage and clarity as to the impact this terrible crime has had on them. The children are obviously traumatised by what happened. Not only have they lost their father in a brutal killing, but they have also lost their mother who has already been incarcerated for four years and will remain incarcerated for some period into the future. Even upon her release, it seems unlikely that she will have much of a further role in the children's lives. That, of course, will be a question for another tribunal but the nature of her crimes and the wishes of the children, as currently expressed and formulated, would seem to suggest that the actions of the offender have been terminal in terms of her relationship with her children. This is a bitterly ironic twist given that her motive appeared always to be to protect them, even though that motive was objectively misguided and the result of serious psychiatric conditions.

23. Toby is a brave boy. He has been seeing a psychologist to help him cope with things he feels and remembers. He is embarrassed and confused about his emotions. He gets flash backs of things he saw and finds it hard to sleep sometimes. He feels sad and sometimes he feels lonely. He feels betrayed and angry and has trouble trusting people now. He feels guilty and thinks he is different to other people. He has trouble focussing at school. For Toby, everything has changed.

24. April is a bright and insightful teenager. She is angry all the time and doesn’t know what to do with her anger. She feels responsible for her little brother and doesn’t know how to help him to deal with his intense emotions. She is confused and gets shaky and dizzy. Sometimes she thinks she is having panic attacks because she has a pain in her heart and is having difficulty breathing. She has lost trust in other people and feels distant and aloof. She is starting to forget exactly what her Dad looked like and the things they did together. She says the impact on her has been great. She hopes her suffering will be recognised by the Court and it certainly will be.

Objective seriousness

25. The foregoing account of the facts of the case, and a review of the judgment on liability, shows that this is a most serious offence. All crimes of homicide are serious because they involve an attack on the sanctity of human life. The law regards human life as precious and generally reserves the most serious punishment for those offenders who take human life away. On the other hand, manslaughter is a crime that can occur in such a wide and diverse series of circumstances that it is difficult to get very much guidance from other cases. The sentences for manslaughter range from non-custodial alternatives to sentences exceeding 20 years. This is not a case that falls anywhere near either of those extreme positions. In my view, it is a serious example of manslaughter because of the planning and premeditation involved in the assault itself. Even though that planning and premeditation did not involve an intention to inflict grievous bodily harm, the fact that the intention was formed while Ms Hutchison was in a rage adds to the seriousness of this particular case of manslaughter.

25. There are a number of aggravating features. The most potent of these is the fact that the offence was committed in the presence of a child. As the Prosecutor submitted, this is a very serious aggravating circumstance because the child who was present was not only the son of the victim but also the son of the offender. The presence of the child was a direct result of the plan hatched by the offender. It is important not to “double count” features on sentence and I have taken into account the impact of the crime on Toby. Even so, it is important to acknowledge that the objective criminality of the crime is significantly increased by the fact that the offender, in a calculated and premeditated way, committed the offence knowing full well that a young child may be exposed to the horrendous violence.

26. The second serious aggravating feature of the case is the fact that the offence was committed inside the home of Mr Walker. Whilst this is a feature of many crimes of homicide, it is a powerful aggravating feature in the present case because Ms Hutchison knew that she was not welcome in the home and obtained a key from a young child (April) who could not know better than to give her mother the key. There was then a reasonably relentless process of luring the unsuspecting Mr Walker to his own home. People are entitled to feel safe within the confines of their own home and that is why the law treats the commission of criminal offences inside people's homes as an aggravating circumstance.

27. There was a significant degree of planning in the attack but it is not the case of an organised criminal activity as that expression is generally understood. While the premeditation and planning is a feature of the offence that substantially increases its objective seriousness, it is not a matter that falls within the aggravating factors identified in s 21A(2) of the sentencing legislation. In considering this aspect of the matter, I have also taken into account that the planning and premeditation did not involve an intention to kill and that the murderous intention was formed after Ms Hutchison lost control of herself inside the premises. Even allowing for that fact, the attack was a premeditated, callous and calculated one.

28. Another aggravating feature of the offence was the fact that it was committed in the company of Mr Wilkinson. [5]

    5. Crimes (Sentencing Procedure) Act 1999, s 21A(2)(e); and see Imnetu v Regina [2006] NSWCCA 203 at [55].

29. The Prosecutor submitted that the offence was also aggravated under s 21A(2)(g) because “the injury, emotional harm, loss or damage caused by the offence was substantial”. I do not accept this submission. To accept that submission would be to value one human life over others. By definition, all cases of homicide involve the infliction of substantial harm. The impact on the secondary victims is properly taken into account under s 28(4) of the Act and in accordance with the principles enunciated in the cases referred to earlier in this judgment. [6]

    6. See footnote 3.

30. Those aggravating features of the crime, along with the other circumstances surrounding its commission, mean that, objectively, this case must be assessed as one involving criminality of a very high order.

31. I accept that the psychiatric incapacity of the offender also has an important role to play in making a proper assessment of the offender’s moral culpability and the objective gravity of the offence. However, that mental incapacity played a significant, if not determinative, role in reducing the offender's liability from murder to manslaughter. It was relevant both to the subjective component of self-defence and to her defence of substantial impairment. It is the primary reason that Ms Hutchison is to be sentenced for manslaughter rather than murder. It has limited weight in assessing the objective criminality of the offence of manslaughter although it is relevant in other ways to a principled assessment of what constitutes an appropriate sentence.

The offender’s personal circumstances

33. Ms Hutchison was born in March of 1978. She was 36 years old when she committed this offence. She has been in custody since her arrest on 21 October 2014 and will turn 41 next month. She has a minor criminal history as an adult comprised of an offence of dishonesty in 1996 and an offence of assault in 2006. Those offences resulted in a small fine and a bond without conviction. Her criminal history can be disregarded and does not disentitle her to leniency. The absence of a criminal history of significance is a mitigating feature. [7]

    7. Crimes (Sentencing Procedure) Act 1999, s 21A(3)(e).

34. A number of references and testimonials were tendered on the offender’s behalf. This included a letter from her mother and from friends of long standing. She has some community support and people who are willing to assist her when she is released from custody. Prior to her incarceration, Ms Hutchison operated a business on the Central Coast and was described as “hard working and switched on” and supportive of her employees. She made generous donations to charity.

35. The written material shows that she has been productive while in custody and has undertaken various courses in spite of the limitations facing remand prisoners. She appears to be a woman of faith and presented with positive letters and certificates from the prison chaplain and a religious college through which she has done some courses by correspondence. She has had some difficulties while in custody including some minor infractions of prison discipline, and (according to the Prosecutor) may have been involved in a plan to escape. Her drug problem has continued to vex her. She went on to the methadone programme and has responded well although she remains anxious and depressed and there have been occasions when authorities were concerned that she would harm herself. In June 2018 she cut herself with a razor blade and may have swallowed the blade. I accept her time in custody is more difficult because of her chronic mental health issues.

36. Ms Hutchison has had a very difficult life. She was the victim of child sexual abuse resulting in long term psychiatric problems. These are described in more detail in my earlier judgment. While her mother now offers her support and love, she was unable to protect Ms Hutchison from the depravity of her step-father and Ms Hutchison was forced to take care of herself in refuges, shelters and on the streets. She turned to drugs and has a long-standing substance abuse disorder. Her relationships have been problematic and dependant. All of these outcomes are very familiar to lawyers and counsellors with expertise in dealing with cases and victims of serious and ongoing child sexual abuse.

37. The considerations that arise when an offender’s life has fallen apart because they were the victim of sexual abuse are similar to the sentencing principles that apply when the offender was the victim of domestic violence,[8] or when their early life was marred by significant social deprivation and exposure to alcoholism and violence. [9] I have taken those considerations into account in settling upon an appropriate sentence. In doing so, I have remained conscious that these matters played a significant role in reducing the crime to manslaughter and also that the personal circumstances of an offender, no matter how moving and tragic, cannot distract from the evil involved in taking human life and must not lead to the imposition of an inadequate sentence that fails to reflect the objectives of punishment set out in s 3A of the sentencing statute and long enshrined in the common law.

    8. R v TP [2018] NSWSC 369.

    9. Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

38. Ms Hutchison tried to be a good mother and cared deeply about her children. Her referees spoke highly of her, and I accept that she was a generous and caring boss. For the purpose of determining mitigating factors on sentence,[10] I am not satisfied that she was a person of good character in view of her bad associations, erratic behaviour and chronic drug dependence. However, based on her lack of significant prior offences, the efforts she has made in custody, and the salutary impact of the sentence I am about to impose, I am satisfied that Ms Hutchison has good prospects of rehabilitation and is unlikely to offend again. These are mitigating factors at law and under the sentencing statute.

    10. For the purpose of s 21A(3)

Bizarre aspects of the facts

39. In the judgment on criminal liability I set out a number of bizarre aspects of the facts of this case. [11] These matters are of little or no relevance to the sentencing proceedings. In determining an appropriate punishment, it does not matter whether Ms Hutchison dabbled in paganism or considered herself to be a white witch. The fact, as it seems to be, that she was involved in concocting spells wishing the victim ill, and destroyed a voodoo doll with similar malignant thoughts, confirms my finding that she had come to despise her husband in an irrational manner. It is otherwise not significant to the question of punishment. Similarly, Mr Walker’s forays into paranormal activity such as exorcism, demonology and “ghost hunting” provide no mitigation or justification for this brutal crime.

    11. For example, R v Hutchison & Wilkinson [2018] NSWSC 1759 at [3], [122]-[127].

The purposes of punishment and general sentencing principles

40. I have taken into account the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act. The punishment must be adequate to reflect the seriousness of the offence. It must deter Ms Hutchison and other members of the community from committing offences of violence. The sentence must denounce Ms Hutchison’s conduct and make her accountable for her actions. It must vindicate the dignity of the victim and reflect the serious emotional harm caused to his loved ones and family. At the same time, the sentence should promote the rehabilitation of the offender.

41. I accept the submission of Senior Counsel, and adopt her elegant language, that the “exquisitely idiosyncratic” nature of this crime means that some of the objectives of punishment have less weight. In particular, the protection of the community is not a factor of great moment given the peculiar circumstances that led to the killing and my finding that Ms Hutchison is unlikely to re-offend.

42. The offender’s psychiatric illnesses may be relevant to sentence in a number of ways and I have considered the issue in light of the principles expressed in decisions of the New South Wales Court of Criminal Appeal. [12] In the present case, the impact on Ms Hutchison’s moral culpability is reflected in the reduction of liability from murder to manslaughter. It can play little additional role in determining the appropriate sentence for the latter crime. However, less weight will be given to general deterrence and this will be reflected, to a degree, in the length of the total sentence. Deterrence remains a significant matter and a clear message must be sent to the community that the taking of human life will never be tolerated by the Court and will result in substantial punishment. The fact that Ms Hutchison’s time in custody has been, and is likely to be, more onerous because of her mental health problems will result in a reduction in the non-parole period upon my finding of special circumstances.

    12. See, for example, Regina v Israil [2002] NSWCCA 255 at [22]-[26]; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]; Ryan v Regina [2017] NSWCCA 209 at [12]-[13], [15], [19]-[22].

Discount for the offer to plead guilty

43. As I have said, the offender made an offer to plead guilty to manslaughter at a very early stage. It is well established in those circumstances that an offender should not be disadvantaged because the Director of Public Prosecutions elected to reject the offer to plead guilty. [13] In view of the timing of the offer to plead guilty, the complexity of the issues and the potential saving of court time, I propose to reduce the sentence that would otherwise be appropriate by 25%. [14]

    13. R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535 at [21] (Hidden J, Greg James J agreeing at [26]). Meagher JA dissented but, insofar as they can be discerned from his Honour’s pithy judgment, for reasons not associated with the discount to be afforded when an offender’s offer to plead guilty is rejected by the Director of Public Prosecutions but vindicated by the jury’s verdict.

    14. See, for example, Villalon v R [2015] NSWCCA 229.

Backdating the sentence

44. The sentence should commence on 21 October 2014, the date when Ms Hutchison was arrested. She has remained in custody since that time and has never been released on bail.

Special circumstances

45. There are special circumstances warranting a reduction of the non-parole period and adjustment to the statutory ratio of 75% between the total sentence and the non-parole period. These circumstances include:

1. Ms Hutchison’s mental health and substance abuse issues, bearing firmly in mind that that these matters have been taken into account in determining the verdict in relation to the murder charge and in determining the length of the head sentence. Even so, they are relevant to the length of the non-parole period because they speak to a particular need for Ms Hutchison to have a substantial period during which she is supervised on parole to facilitate her rehabilitation and her successful re-integration into the community.

2. This is Ms Hutchison’s first gaol sentence.

3. Ms Hutchison’s time in custody has been, and is likely to continue to be, particularly onerous.

4. The community has an interest, reflected in s 3A(d) of the sentencing legislation, in promoting the rehabilitation of the offender. In the particular circumstances of the present case that interest will be fostered by a longer period of parole.

Comparable cases, statistics and a particular submission made by the learned Prosecutor

46. I have considered the sentences imposed in a number of previous manslaughter cases as well as the statistics maintained by the Judicial Commission. [15] I have done this to ensure that there is a reasonable consistency between the sentence imposed on Ms Hutchison and the pattern of sentences that can be discerned from past cases. However, as has often been said, the crime of manslaughter arises in such a diverse range of circumstances that little guidance can be gleaned from the outcomes of other sentencing proceedings. The sentence to be imposed must reflect the particular factual circumstances of this crime, its devastating impact on Mr Walker’s family, and Ms Hutchison’s individual personal circumstances.

    15. Counsel took me to R v Tarrant [2018] NSWSC 774 and R v Bloodsworth; R v Errington (No 5) [2018] NSWSC 79.

47. The Prosecutor made a submission that the offender presents a “burden to the children” and predicted (probably correctly) that she will attempt to re-establish contact with them upon her release. [16] Accordingly, so the submission went, they “should not have to bear [the release of their mother] until they at least reach adulthood or something close to it.” The submission was that the “more maturity they … gain by the passing of years, the better they will be able to deal with the overtures of their mother.” The submission went so far as to suggest that “the community rightly seeks [this] of this Court”. I reject those submissions. There is little or no evidence that Ms Hutchison poses a threat to the two children (physical or psychological) even though, at this stage, they are both gravely affected by her conduct and want nothing to do with her. Whether there is contact after her release will be a decision for another tribunal. They are presently being cared for by Mr Walker’s family and are in a very good environment. No doubt they will make decisions about future contact on the basis of what is in the best interests of Toby and April. It is simply wrong to suggest that the appropriate punishment and length of the non-parole period should be determined by reference to the age or maturity of the children at the time that the non-parole period expires.

    16. See Crown’s Written Submissions at [37] and transcript of the sentencing hearing at [50].

Sentence

48. I would commence with a sentence of 12 years which will be reduced to 9 years to reflect a 25% reduction for the offer to plead guilty. Ordinarily this would result in a non-parole period of 6 years and 9 months. However, to reflect the finding of special circumstances I will impose a non-parole period of 5 years and 6 months.

49. Ms Hutchison, for the manslaughter of Brett Walker you are sentenced to a non-parole period of 5 years and 6 months commencing on 21 October 2014 and expiring on 20 April 2020. There will be a balance of term of 3 years and 6 months commencing on 21 April 2020 and expiring on 20 October 2023.

50. I am required to advise you that the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) apply to the offence for which you have been sentenced. Pursuant to s 25C of that Act, I direct your lawyers to advise you of the possible application of the Act.

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Endnotes

Decision last updated: 31 January 2019