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Supreme Court 31 January 2019

R v Raquel Hutchison

[2019] NSWSC 25

Assault & violenceHomicide
CRIMINAL LAW SENTENCING MANSLAUGHTER EXCESSIVE SELF DEFENCE SUBSTANTIAL IMPAIRMENT

Citation: R v Raquel Hutchison [2019] NSWSC 25
Court: Supreme Court of New South Wales
Date: 31 January 2019
Judge: Hamill J

Background

The offender was convicted of the manslaughter of her former husband following a judge-alone trial. The verdict, returned in November 2018, reflected findings that the offender had formed an intention to inflict grievous bodily harm during the course of the assault, but that the prosecution had not disproved the subjective element of self-defence, and that the offender suffered from substantial impairment by abnormality of mind. These two bases reduced what would otherwise have been murder to manslaughter.

The circumstances were described by Hamill J as chilling and brutal. The offender lured the deceased to his own home, having unlawfully entered it earlier, and subjected him to a severe and sustained assault involving repeated blows, an electrical prod, the use of "Exit Mould" to blind or incapacitate him, and ultimately the application of a ligature to his throat. The deceased died from asphyxia caused by the combination of a broken nose, aspirated food, and the ligature. His body was later dumped on a dirt road north of Wisemans Ferry. A nine-year-old child, the couple's son, was present in the house during the assault.

The offender had, prior to trial, offered in 2015 to plead guilty to manslaughter on whatever basis the Director of Public Prosecutions considered appropriate. That offer was rejected. The case proceeded slowly through the courts before being resolved at trial. This sentencing judgment deals with the appropriate penalty following the manslaughter conviction.

  • What was the objective seriousness of the offence, having regard to the specific circumstances of this manslaughter?
  • What weight should be given to the offender's significant mental health history, including childhood sexual abuse, in mitigation?
  • How should the court treat an early offer to plead guilty to manslaughter that was rejected by the prosecution but ultimately vindicated by the verdict?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and head sentence.
  • How should the sentencing objectives under the Crimes (Sentencing Procedure) Act 1999 be applied where the offence was described as "exquisitely idiosyncratic" and general deterrence has limited relevance?

Decision

Hamill J treated this as a very serious instance of manslaughter. The offence involved a specific intention to inflict grievous bodily harm, a significant degree of planning and deceit, the use of improvised weapons, the presence of a young child, and the commission of the offence inside the victim's own home. The treatment of the body after death was described as demonstrating callous disregard for the victim's dignity. These features placed the offending at the higher end of the manslaughter range.

In mitigation, the court gave substantial weight to the offender's long-standing and serious mental health issues, which were causally connected to childhood sexual abuse. Consistent with the High Court's approach in Bugmy v The Queen, the court accepted that the effects of profound childhood trauma do not diminish over time and remained relevant to moral culpability. The offender's mental state had already operated to reduce the charge from murder to manslaughter, but its significance as a mitigating factor was not thereby exhausted entirely, though the court was careful not to double-count.

The 2015 offer to plead guilty to manslaughter was afforded a meaningful discount. Hamill J accepted that an offender who makes an early genuine offer to plead guilty to the charge on which they are ultimately convicted, even if that offer is rejected by the Crown, is entitled to a discount reflecting the utilitarian value of what was offered. The court also found special circumstances existed, given the offender's need for an extended period of supervised release to address her rehabilitation and reintegration, justifying a longer balance of term than the statutory norm.

The court observed that where an offence is so specifically tied to the offender's individual circumstances and relationships, general deterrence carries reduced weight. Specific deterrence and rehabilitation were treated as the more significant sentencing objectives in this case.

Orders Made

  • Non-parole period of 5 years and 6 months, commencing 21 October 2014 and expiring 20 April 2020.
  • Balance of term of 3 years and 6 months, commencing 21 April 2020 and expiring 20 October 2023.
  • Total head sentence of 9 years.
  • Direction under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) that the offender's lawyers advise her of the possible application of that Act.

Key Takeaways

  • An early offer to plead guilty to manslaughter, made before committal and rejected by the Director of Public Prosecutions, can attract a sentencing discount where the verdict ultimately vindicates the offer, reflecting the utilitarian benefit that would have been achieved.
  • Under the approach confirmed in Bugmy v The Queen, profound childhood trauma and its ongoing psychological effects retain mitigating force at sentencing even where those same matters have already contributed to reducing the charge from murder to manslaughter, provided there is no impermissible double-counting.
  • Special circumstances justifying an adjusted non-parole period to head sentence ratio may be found where the offender's rehabilitation and supervised reintegration needs are substantial and the standard ratio would leave an insufficient period of supervised release.
  • Where an offence arises from a unique constellation of personal relationships and psychological history, general deterrence may carry diminished weight as a sentencing objective, with rehabilitation and specific deterrence taking greater prominence.
  • Aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 applied in this case included the commission of the offence in the presence of a child and within the victim's own home.

Legislation and Cases Referenced

Legislation:
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 28(4)

Cases:
- 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