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R v Hutchinson

 

[2018] QCA 29

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Hutchinson [2018] QCA 29

PARTIES:

R
v
HUTCHINSON, Michael Geoffrey
(applicant)

FILE NO/S:

CA No 74 of 2017

SC No 83 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Townsville – Date of Sentence: 31 March 2017 (North J)

DELIVERED ON:

9 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2017

JUDGES:

Fraser and Morrison JJA and Mullins J

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of fraud and not guilty to one count of murder at trial – where the applicant was acquitted of murder, but found guilty of manslaughter – where the victim was his wife – where the sentence for manslaughter was 15 years six months imprisonment to reflect the overall criminality for both offences – where the offence of manslaughter was recorded as a domestic violence offence – where the offence of manslaughter was committed before the commencement of s 9(10A) of the Penalties and Sentences Act 1992 (Qld) – whether the sentencing judge erred in applying s 9(10A) or whether the sentence was otherwise manifestly excessive

Acts Interpretation Act 1954 (Qld), s 14B, s 15A

Criminal Law (Domestic Violence) Amendment Act 2016 (Qld), s 5, s 6, s 7, s 9, s 10

Penalties and Sentences Act 1992 (Qld), s 9, s 12A

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, considered

Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19, considered

R v Baggott [2000] QCA 153, considered

R v Breeze (1999) 106 A Crim R 441; [1999] QCA 303, cited

R v Carlton [2010] 2 Qd R 340, [2009] QCA 241, followed

R v Harold [2011] QCA 99, considered

R v Koster (2012) 226 A Crim R 247; [2012] QCA 302, distinguished

R v Mason and Saunders [1998] 2 Qd R 186; [1997] QCA 421, cited

R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited

R v Pham (2009) 197 A Crim R 246; [2009] QCA 242, followed

R v Truong [2000] 1 Qd R 663; [1999] QCA 21, followed

R v West [2011] QCA 76, considered

COUNSEL:

D R Kinsella for the applicant

J A Wooldridge for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Mullins J and the order proposed by her Honour.
  2. MORRISON JA:  I agree with the reasons of Mullins J and the order her Honour proposes.
  3. MULLINS J:  In March 2017 Mr Hutchinson was convicted after trial of the unlawful killing of his wife Mrs Hutchinson.  There were two counts on the indictment.  At the commencement of the trial Mr Hutchinson pleaded guilty to one count of fraud to the value of $30,000 or more.  He went to trial on the second count of murder of which he was acquitted, but the jury found him guilty of manslaughter.  The learned sentencing judge imposed the sentence for the offence of manslaughter to reflect Mr Hutchinson’s overall criminality for both offences.  He was therefore convicted and not further punished in respect of the fraud count.  He was sentenced to imprisonment for a period of 15 years and six months for the manslaughter offence.  A declaration was made that the pre-sentence custody of 720 days between 11 April 2015 and 30 March 2017 was imprisonment already served under the sentence.  In relation to the manslaughter offence, it was declared Mr Hutchinson was convicted of a serious violent offence and the conviction was also recorded as a domestic violence offence.  The charge of murder on the indictment had been endorsed pursuant to s 12A of the Penalties and Sentences Act 1992 (Qld) (the Act), in terms of that provision as inserted originally by Criminal Law (Domestic Violence) Amendment Act 2015 (Qld) which commenced on 1 December 2015.
  4. Mr Hutchinson applies for leave to appeal against his sentence on the ground the sentence was manifestly excessive in that the sentencing judge erred either in applying the principle set out in s 9(10A) of the Act or in failing to take into account the totality principle.

Circumstances of the offences

  1. The fraud offence arose out of Mr Hutchinson’s action in July 2014 in fraudulently mortgaging the family home, and using a third party to pretend to be Mrs Hutchinson to facilitate the transaction, pursuant to which he borrowed $86,000 from the complainant finance company to establish a business.
  2. Mr and Mrs Hutchinson had been married for a lengthy period.  There were two children of the relationship who were school aged at the time Mrs Hutchinson disappeared.  Mr Hutchinson was the house husband and Mrs Hutchinson was in full-time employment.  She did not attend her place of work on Monday 9 March 2015.  Mr Hutchinson reported to others they had an argument and Mrs Hutchinson had left.  For about a month, Mr Hutchinson embarked on an elaborate scheme of supporting his lie about Mrs Hutchinson’s whereabouts.  He deceived family, friends, her employer, the police and the community.  He used Mrs Hutchinson’s telephone to send and receive text messages and purported to affect her resignation from her employment via email.  He attempted to obtain her termination payment.  He made adverse comments about her character to others.
  3. Mr Hutchinson told a number of different stories as to Mrs Hutchinson’s disappearance.  Ultimately he suggested that Mrs Hutchinson had been killed in self-defence.  His deception extended to the proposition that he did not know the location of Mrs Hutchinson’s body.  He enlisted the third party to contact Mrs Hutchinson’s sister, pretending to be Mrs Hutchinson.

Mr Hutchinson’s antecedents

  1. Mr Hutchinson was aged 46 years when he committed the fraud offence and aged 47 years when he killed his wife.  He was aged 49 years when sentenced.  He had no prior criminal history.  There had been no offer prior to trial to plead guilty to manslaughter and there was no plea of guilty to manslaughter, when arraigned at the trial.

Sentencing remarks

  1. The sentencing judge described the dominating features of the case as the absence of a reliable account as to what happened to Mrs Hutchinson and Mr Hutchinson’s “manifest deceit”.  He found that it was likely Mrs Hutchinson died some time on the weekend of 7 and 8 March 2015.
  2. The sentencing judge recited the version that Mr Hutchinson had given his father and the third party that was designed to suggest he was not criminally responsible for her death which was:

“… that she died in an incident that occurred at the family home sometime after she had left you, when she returned with some associates, unnamed people from Melbourne.  You told them that those associates, or at least one of them, attacked you or threatened you, that there was a scuffle, that she was knocked and that she fell and injured her head and died as a result of head injuries.”

  1. The sentencing judge described that version as a lie that had been rejected by the jury.  The suggestion that Mr Hutchinson did not know where Mrs Hutchinson’s body was left was also characterised as a lie.  The sentencing judge stated:

“While the circumstances of her death are not known, it can be safely inferred to a high degree of satisfaction that she died as the result of a violent death.  You told your father that the police would find blood in the car, because her body had been in the car.  The account of blood is an admission by you against interest.  It is probably one of the few accurate statements that you made during this course of deception.”

  1. There had been no indication of remorse and the sentencing judge considered Mr Hutchinson’s prospects of rehabilitation “should be regarded as fanciful”.
  2. By reference to the matters traversed in the sentencing remarks, the jury’s verdict of guilty of manslaughter was explicable on the basis the jury were not satisfied on the evidence beyond reasonable doubt that at the time of causing Mrs Hutchinson’s death, Mr Hutchinson intended to kill her or to cause her grievous bodily harm.
  3. It was noted the loan of $86,000 that was fraudulently obtained increased with costs and interest to a debt of $140,000 that was eventually recovered by the finance company.  The sentencing judge noted there was some evidence at the trial that by the time of Mrs Hutchinson’s death, she may have known that Mr Hutchinson had borrowed a significant sum of money to establish the business, but there was no suggestion she was aware the family home had been mortgaged.  By the time Mrs Hutchinson died, the family finances were in a desperate state.  The sentencing judge noted that bills had not been paid, money was owing, and financiers and creditors were pressing for payment, and that it was possible that Mr Hutchinson had been hiding the state of the family finances from Mrs Hutchinson.
  4. The sentencing judge referred to the circumstances of the fraud and its consequences playing a role in the circumstances relied upon by the prosecution at the trial in relation to Mrs Hutchinson’s death.  The sentencing judge therefore proposed to impose a sentence that took into account the overall criminality of the combined offending.
  5. The sentencing judge referred to the comparable authorities relied on by both the prosecutor and Mr Hutchinson’s counsel and noted:

“Taking into account the cases that I was referred to, the learned Crown prosecutor submitted that the range for the sound exercise for discretion in the circumstances of this case might be between 11 and 14 years.  I am summarising the submission somewhat.  Your counsel contended for a range of between 10 and 11 years.  He emphasised that some of the cases relied upon by the learned Crown Prosecutor involved cases where there was either a significant element of violence or repetition of violence, with or without significant criminal history for violence.”

  1. The prosecutor had submitted that s 9(10A) of the Act applied to the sentencing and referred to the Explanatory Notes for the Criminal Law (Domestic Violence) Amendment Bill (No 2) 2015 (Qld) and the amendment to the Act to make provision for domestic and family violence to be an aggravating factor on sentence which was described on p 2 of the Explanatory Notes in these terms:

“An aggravating factor increases the culpability of an offender which means that the offender should receive a higher sentence within the existing sentencing range up to the maximum penalty for the offence.  The amendment reflects community attitudes about the seriousness of criminal offences that occur in a domestic and family context and makes these offenders more accountable.”

  1. The prosecutor had also referred in submissions to the purpose of the insertion of subsection (10A) into s 9 of the Act set out in the Explanatory Notes at p 3:

“… to provide that the commission of a domestic violence offence is an aggravating factor that the court must have regard to in determining the appropriate sentence for an offender.  The provision is moderated to exclude exceptional circumstances to avoid unintentional consequences on victims.”

  1. The sentencing judge stated expressly that he proposed to give effect to the policy objectives of subsection (10A) and to reflect the serious criminal behaviour of Mr Hutchinson’s “violently causing your wife’s death” by imposing a sentence of 14 years’ imprisonment at the upper end of the range suggested by some of the comparable cases.
  2. The sentencing judge noted the prosecutor had submitted that a fraud perpetrated in the order of $86,000 might attract a sentence of imprisonment between three and five years and defence counsel submitted the range might be between three and four years.  (The respondent conceded on this application that the prosecutor’s submission before the sentencing judge that a sentence of up to five years could have been imposed for the fraud was incorrect and adopted the same submission as to range that had been put by defence counsel to the sentencing judge.)
  3. In increasing the sentence for the unlawful killing to take account of the overall criminality, the sentencing judge noted that he had to be careful not to impose a sentence that was too high by adding on a period attributable to the fraud offending which would be subject to the requirement that 80 per cent had to be served when, if a separate sentence were imposed for the fraud, a parole eligibility after serving 30 per cent of the sentence might be allowed.  The sentencing judge therefore acted on the suggestion of the prosecutor that a period of 18 months be added onto the notional sentence for the manslaughter to reflect the overall criminality arising from both offences, following the approach in R v Derks [2011] QCA 295 at [28].  That approach resulted in the sentence of 15 years and six months for the offence of manslaughter.

Did s 9(10A) of the Act apply to the sentencing?

  1. The first issue is whether the sentencing judge erred in sentencing on the basis that s 9(10A) of the Act applied to the sentencing.  Section 9(10A) provides:

“In determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that it is a domestic violence offence as an aggravating factor, unless the court considers it is not reasonable because of the exceptional circumstances of the case.

Examples of exceptional circumstances

  1. the victim of the offence has previously committed an act of serious domestic violence, or several acts of domestic violence, against the offender
  2. the offence is manslaughter under the Criminal Code, section 304B.
  1. Mrs Hutchinson was killed in March 2015, more than 13 months prior to the assent to the Criminal Law (Domestic Violence) Amendment Act 2016 (the Amendment Act) given on 5 May 2016.  There is no express transitional provision in that Act relating to s 5 which inserted subsection (10A) into s 9 of the Act, so it commenced on the date of assent: s 15A Acts Interpretation Act 1954 (Qld) (AI Act).  The sentencing judge had therefore treated s 9(10A) as a procedural amendment to which the common law presumption against retrospective operation did not apply.
  2. It is submitted by Mr Kinsella of counsel on behalf of Mr Hutchinson that s 9(10A) is a substantive and not a procedural provision and the presumption against retrospective operation applies.  That follows from the use of the words “must” and “aggravating” in the provision.  The court is obliged to treat the fact that the offence is a domestic violence offence as an aggravating factor, unless it is not reasonable to do so, because of exceptional circumstances.  It is not left to the discretion of the court to take account of the fact that it is a domestic violence offence.  It was an error for the sentencing judge to apply s 9(10A) to the sentencing of Mr Hutchinson for the offence of manslaughter committed prior to the commencement of s 9(10A).  The sentencing judge’s desire “to give effect to the policy objectives” by selecting a notional sentence for the offence of manslaughter at the top of the range meant the sentencing judge erred by regarding the sentencing discretion as fettered in that way.
  3. It is submitted on behalf of Mr Hutchinson that a distinction could be drawn in the manner in which the Amendment Act treated the amendment made in s 6 to reverse the effect of the decision in Barbaro v The Queen (2014) 253 CLR 58.  The amendments made by s 6 of the Amendment Act to s 15 of the Act and by s 9 of the Amendment Act to s 150 of the Youth Justice Act 1992 (Qld) were the subject of transitional provisions set out in s 7 and s 10 of the Amendment Act that specifically made those amendments retrospective.
  4. It is submitted by Ms Wooldridge of counsel on behalf of the respondent that whether s 9(10A) was procedural and therefore had retrospective operation (in the sense of applying to the sentencing of an offence after the enactment of the provision, but where the offence was committed before the provision was enacted) must be determined by reference to the legislative framework of s 9 within which the provision falls.  Section 9 of the Act historically was held, when enacted, to be procedural and not substantive in effect.  By mandating that the court must treat the fact that it is a domestic violence offence as an aggravating factor, s 9(10A) is regulating the approach of the sentencing judge to that factor, rather than an outcome of the sentence.
  5. In deciding between the respective contentions on whether s 9(10A) is a procedural or substantive provision, the starting point is the consideration of the characterisation of various provisions inserted into s 9 of the Act.
  6. Section 9 of the Act was amended substantially by the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld) including an amendment to the provision that had provided that, in certain circumstances, a sentence of imprisonment should only be imposed as a last resort, so that principle no longer applied to offences involving the use of violence against another person.  The issue arose in R v Truong [2000] 1 Qd R 663 whether the offender should have been sentenced according to the principles set out in s 9 of the Act as it stood at the time of the commission of the offence or as it stood at the time when he was sentenced which was after the 1997 amendments had commenced.
  7. The Court of Appeal applied Rodway v The Queen (1990) 169 CLR 515, 522-524 and found at [17] and [25] that the factors prescribed in s 9 of the Act set out the way in which a judge is to approach the factors and the manner to proceed when passing sentence and is a procedural provision.  Rodway was concerned with the statutory requirement for corroboration of the complainant’s evidence in some material particular where the defendant was charged with a sexual offence.  That requirement was dispensed with in the new provision substituted after the defendant had been charged.  The new provision provided that no rule of law or practice required the judge to give a warning to the jury that it was unsafe to convict the person on the uncorroborated evidence of the complainant, unless the judge was satisfied the warning was justified in the circumstances.  The court noted at 522 that it did not necessarily follow that amendments to procedures at a trial that provide fundamental protection against wrongful conviction should be regarded as having a retrospective operation, because the trial concerns past events, stating:

“The fact that such procedures are important does not alter the way in which they operate and, if they operate so as to affect no existing rights or obligations but merely the way in which those rights or obligations are to be contested in court, then they do not fall within the presumption against retrospectivity.”

  1. The court in Rodway held at 523 that the amendments were procedural in character:

“Rather, they operated to affect the way in which rights fell to be determined at trial and, for that reason, they did not fall within the presumption against retrospective operation.”

  1. On the appeal in Truong, it was argued the effect of s 11(2) of the Criminal Code and the decision in R v Mason and Saunders [1998] 2 Qd R 186 was that Mr Truong should have been sentenced on the basis of s 9 of the Act, as it stood before the 1997 amendments.  In Mason and Saunders, part 9A of the Act (dealing with serious violent offences) which was also introduced by the 1997 amendments was held to punish an offender to a greater extent than was authorised by the former law within the meaning of s 11(2) of the Code and increased the penalty for the offence within the meaning of s 20C(3) of the AI Act.  The court in Truong did not depart from the view of the court in Mason and Saunders in respect of the non-application of part 9A to offences committed prior to the 1997 amendments, but held at [25] that s 9 of the Act (whether before or after the 1997 amendments) was a “purely procedural provision” and nothing in s 11 of the Code or s 20 or s 20C of the AI Act entitled Mr Truong to be sentenced according to the earlier version of s 9 of the Act.
  2. On the basis the reasons of the court in Truong could be considered as expressing a doubt about Mason and Saunders, a differently constituted court in R v Breeze (1999) 106 A Crim R 441 confirmed at [12] that Mason and Saunders should continue to be followed, but at [8] also followed Truong in relation to the amendments to s 9 of the Act.
  3. The characterisation of subsections (6A) and (6B) inserted in s 9 by the Criminal Code and Other Acts Amendment Act 2008 (Qld) with effect from 1 December 2008 was the subject of R v Carlton [2010] 2 Qd R 340.  Section 9(6A) provided that the principles mentioned in subsection (2)(a) do not apply to the sentencing of an offender for specified offences including those to which Mr Carlton had pleaded guilty on 10 December 2008.  Section 9(6B) provided that in sentencing an offender to whom subsection (6A) applies, the court must have regard primarily to the matters that were then listed.  The majority in Carlton concluded that subsections (6A) and (6B) applied to Mr Carlton’s offending committed before the provisions were inserted into s 9 of the Act, even though he was sentenced after the commencement of those provisions.  Chesterman JA who was in the majority stated at [88], referring first to criticism of Truong made in Breeze:

“The point made was that ‘laws relating to the matters taken into account in determining the level of sentence are ... substantive’, or arguably so. This is to suggest that a change to s 9 is a change of substantive law. I respectfully disagree and would follow and endorse the categorisation given in Truong: the change is to procedure. What the section does is to identify factors (but not all factors) to which a court must have regard when imposing a sentence. The actual imposition of a sentence is an exercise of discretion. Section 9 seeks to regulate the manner in which the discretion is to be exercised by an identification and weighting of factors to be taken into account and balanced out. A change to the factors, or a reordering of their priorities is not, in my opinion, properly described as changing a substantive law. It affects only the manner in which judges go about exercising the discretionary power of sentencing. To add to or subtract from the list of factors to be considered, even the removal of a factor normally regarded as important as a plea of guilty, would not, in my opinion, effect an alteration to the substantive law of sentencing.”

  1. Chesterman JA also wrote the leading judgment in R v Pham (2009) 197 A Crim R 246 where observations were made about the applicability of s 9(6A) and s 9(6B) to the sentencing of an offender who offended before the provisions had been enacted, but who was sentenced after the provisions commenced.  Keane JA (as his Honour then was) agreed with Chesterman JA’s reasons on this point observing at [5] to [7]:

“[5] Sections 9(6A) and s 9(6B) of the PSA are concerned, as were the provisions which they amended, including s 9(2)(a), to lay down the principles to be applied by the Court in sentencing an offender. These provisions inform the exercise of the sentencing discretion: they are not concerned to authorise the imposition on an offender of punishment to any particular extent, much less ‘to any greater extent than was authorised by the former law’. The extent of the punishment authorised for a given offence is determined by legislation other than s 9 of the PSA.

[6] The application of the sentencing principles in s 9 as amended will not result in the imposition of punishment to a greater extent than might have been imposed prior to the amendment in question. The most that can be said is that the application of the amending sentencing principles may have that effect. That this is so can be understood more clearly when one reflects upon the nature of the sentencing process, described in the High Court in Markarian v The Queen, as a process of ‘instinctive synthesis’.

[7] In such a process, some of the principles prescribed by s 9 of the PSA may have great weight and others little weight, depending on the circumstances of each offence and each offender. In some cases, some of these principles will have little or no effect upon the outcome of the process because, in the particular circumstances, other principles have an almost overwhelming claim on the sentencing discretion.  …” (footnote omitted)

  1. R v Koster (2012) 226 A Crim R 247 was concerned with the insertion of s 9(5)(b) into the Act by s 5 of the Penalties and Sentences (Sentencing Advisory Council) Amendment Act 2010 (Qld) which provided that in sentencing an offender for an offence of a sexual nature committed in relation to a child under 16 years, the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.  There was no provision in that 2010 Act making s 9(5)(b) retrospective.  Holmes JA (as her Honour then was), with whom Margaret McMurdo P agreed, surveyed the relevant authorities at [24] to [38], commencing with Mason and Saunders through to Olsen v Sims (2010) 28 NTLR 116, and found at [38] that s 9(5)(b) did not apply to offences committed before the amendment commenced:

“It is clear that s 9(5)(b), unlike the provisions within Truong, Carlton and Pham, is not merely procedural; it has a substantive effect, making the imposition of actual imprisonment mandatory in the ordinary case. By doing so, it can be said (by logic similar to that in Pierpont) to increase the minimum sentence within the meaning of s 180(1) of the Penalties and Sentences Act; with the result that the increase should be taken to apply only to offences committed after s 9(5)(b) commenced. Section 204 of the Penalties and Sentences Act has no bearing; it must yield to s 180 as the more specific provision. Similarly, taking the broad view of s 11(2) of the Code adopted in Mason & Saunders and endorsed in Carlton, Pham and Olsen v Sims, that provision should be regarded as operating to prevent the application of s 9(5)(b) to offences committed before it commenced.” (footnotes omitted)

  1. By analysing the effect that s 9(5)(b) of the Act had on the outcome of the sentencing process, Holmes JA applied s 180 of the Act and Mason and Saunders to conclude that the effect of the provision in making actual imprisonment mandatory increased the minimum sentence and thereby distinguished Truong, Carlton and Pham.  Those latter decisions therefore remain authoritative in the circumstances in which they applied.
  2. It is relevant that the amendment to the Act that inserted s 12A to provide for a charge to state that the offence is also a domestic violence offence took effect on 1 December 2015 and was applied without challenge, but appropriately, to the charge of murder on the indictment against Mr Hutchinson.
  3. The fact that the only transitional provisions in the Amendment Act applied to s 6 and s 9 of the Amendment Act can be explained on the basis that those transitional provisions applied both to offences and convictions before the commencement of the Act.  That would cover sentencing that took place before the Act commenced and preclude any subsequent appeal on the basis that one of the parties had made submissions to the sentencing judge relating to the appropriate sentence or range of sentences before the Amendment Act commenced.  In contrast, s 9(10A) applies to sentencing only after the commencement of the Act, which makes a transitional provision unnecessary.
  4. The nature of the amendment made by the insertion of s 9(10A) is to direct the sentencing judge to treat the fact the offender has been convicted of a domestic violence offence as an aggravating factor to be taken into account in weighing up all the relevant factors that apply to sentencing that particular offender for the offence.  The sentencing judge’s sentencing discretion remains intact.  It is the approach to the exercise of the discretion that is affected by the insertion of subsection (10A) into s 9 of the Act, rather than a mandated outcome by following that approach.  Consistent with Truong, Carlton and Pham, s 9(10A) is therefore a procedural provision.
  5. The enactment of subsection (10A) of s 9 of the Act reflects the implementation of the policy of the Legislature that the fact the offender has been convicted of a domestic violence offence is an aggravating factor, when the sentencing judge takes account of all the relevant factors on the sentencing.  That is likely to have an effect over time on the sentencing for offenders convicted of offences that are also domestic violence offences, but the effect in any particular case will depend on the balancing of all the relevant factors related to that offending and offender.  The comments of Keane JA in Pham at [5] to [7] are apt to describe the effect of s 9(10A) on the sentencing process.
  6. On the basis that s 9(10A) of the Act is neither ambiguous nor obscure, it is not necessary in accordance with s 14B of the AI Act to have regard to the relevant Explanatory Notes in interpreting s 9(10A).  Although s 14B(1)(c) permits regard to extrinsic material to confirm the interpretation conveyed by the ordinary meaning of the provision, the Explanatory Notes that applied to s 5 of the Amendment Act are not particularly helpful.  The Explanatory Notes describe an “aggravating factor” by reference to “the existing sentencing range” in a way that does not reflect the sentencing task.  As explained by the plurality in Barbaro at [24] to [28], the reference to an “available range” of sentences for an offender is a “negative” concept that is applied on an appeal to ascertain whether the discretionary judgment exercised by the sentencing judge resulted in a sentence that was “so wrong that there must have been some misapplication of principle in fixing it”.  The plurality pointed out at [27] that does not translate into “any positive statement of the upper and lower limits within which a sentence could properly have been imposed”.
  7. Submissions put by counsel before a sentencing judge as to a range of sentences is usually done in recognition that a sentencing judge must make a decision about matters including the circumstances of the offending, the degree of cooperation with the administration of justice, the prospects for the offender’s rehabilitation, any personal attributes of the offender that are relevant to the sentencing, and any other issues of fact that must be determined at the sentencing.  That was recognised by the plurality in Barbaro at [35]:

“Hence, if a party to sentencing proceedings proffers a range of sentences as the range within which a particular sentence should be imposed upon an offender, the range will necessarily reflect conclusions or assumptions (stated or unstated) which have been made about what considerations bear upon sentence and what weight is given to each.”

  1. Any consideration of the Explanatory Notes does not affect the conclusion that s 9(10A) of the Act should be interpreted as applying to all sentencing from its commencement, whether or not the offending was committed before or after the commencement.
  2. The sentencing judge did not err in applying s 9(10A) and Mr Hutchinson cannot succeed on the ground the sentence was manifestly excessive due to the application of the principle set out in s 9(10A) of the Act.

Was the sentence otherwise manifestly excessive?

  1. It is submitted on behalf of Mr Hutchinson that whilst the sentencing judge imposed a global sentence for the offence of manslaughter consistent with the approach in R v Nagy [2004] 1 Qd R 63 at [39] and [68], the path to the result was tainted by an accumulation of the two sentences without amelioration for the totality principle set out in Mill v The Queen (1988) 166 CLR 59.  The reduction of the fraud head sentence was confined only to the unfairness associated with serving 80 per cent of the sentence.
  2. The respondent submits that the real question raised by this argument is not the application of the totality principle, but whether the effective sentence was manifestly excessive in all the circumstances.  The comparable cases support a substantial sentence for Mr Hutchinson’s offending and the sentence that was imposed cannot be shown to be outside the exercise of a sentencing judge’s permissible discretion for Mr Hutchinson’s offending.
  3. Although the sentencing judge explained how he arrived at the effective sentence of 15 years six months for the offence of manslaughter, it is not scrutiny of that calculation which determines whether that sentence was manifestly excessive.  It is a consideration of whether that was the appropriate sentence for Mr Hutchinson for the offending, having regard to the application of the principle in Nagy that it is permissible to fix a sentence for the most serious offence that takes into account the overall criminality and which is higher than that which could have been fixed for the most serious offence had it been the only offence.
  4. Mr Kinsella of counsel relied on the comparable authorities of R v Baggott [2000] QCA 153 and R v Harold [2011] QCA 99 (to which the sentencing judge had also been referred) as the most instructive for the purpose of determining whether the sentence imposed on Mr Hutchinson was manifestly excessive.
  5. The majority in Baggott dismissed Mr Baggott’s application for leave to appeal against a sentence of 11 years’ imprisonment imposed for the manslaughter of his former wife.  Mr Baggott had been found guilty after trial for murder, and he had not pleaded guilty to manslaughter.  He was 43 years old with no criminal history.  He was separated from his former wife when he used the ruse of wanting to exchange motor vehicles to lure her to his home where it was inferred that he intended to cause some injury to her, even if it fell short of an intention to kill or do grievous bodily harm.  Ultimately when interviewed by the police, he admitted to killing her and disposing of her body in the river.  There was no finding made as to how Mr Baggott had killed the deceased.  McPherson JA, with whom Margaret McMurdo P agreed, noted that it was an aggravating circumstance that Mr Baggott disposed of the body in such a way that it was not possible to determine the cause of death, or how he brought it about.
  6. Mr Harold was unsuccessful in Harold in applying for leave to appeal against the sentence of 14 years’ imprisonment imposed on him after trial where he was acquitted of murder, but found guilty of the manslaughter of his de facto partner.  He was 34 years old at the time of the offence and had a prior criminal history that included offences of violence which he committed upon the deceased over a period of about 10 years.  The sentencing judge inferred that both Mr Harold and his victim were alcoholics.  The sentencing proceeded on the basis that the jury must have had a reasonable doubt about Mr Harold’s capacity to form the requisite intent because of intoxication.  The unlawful killing occurred when he had been drinking heavily and Mr Harold confessed to a number of persons he thought he had killed his partner.  She had 13 stab wounds to her front, seven or eight to her back, one to the arm, one to her thigh, and her hands showed signs of defensive injuries.  Only one of the wounds proved fatal, but only minimal force was required to inflict that wound.  At the same time that Mr Harold was sentenced for manslaughter, he also pleaded guilty to two counts on an ex officio indictment of assault occasioning bodily harm related to the victim.  The sentencing judge arrived at a sentence of 12 years on the manslaughter, but added a further two years, so that a global sentence was imposed to reflect the manslaughter and the assaults.
  7. Ms Wooldridge relied particularly on R v West [2011] QCA 76.  Mr West was successful in having his sentence for manslaughter reduced from imprisonment of 15 years to 13 years.  He was acquitted of the murder of his uncle, but found guilty of manslaughter, but did not plead guilty to manslaughter, despite the strong case against him.  His uncle had moved into the house next door about which Mr West was unhappy, describing his uncle as a “paedophile”, although it is noted at [5] in the reasons of Margaret Wilson AJA that no evidence was led at trial that the deceased was, in fact, a paedophile.  At the time of the killing, Mr West was heavily intoxicated with alcohol and had not slept since he had injected a gram of amphetamine two days previously.  Mr West attacked his uncle with a flywheel and also stomped on him.  There were at least seven blows of severe force on the top of the victim’s head, as well as other blows to other parts of his body.  Mr West was 32 years old at the time he committed the offence with a comparatively minor criminal history for which fines had been imposed.  The jury’s verdict was explicable on the basis that they could not be satisfied beyond reasonable doubt that Mr West had the necessary intention to kill or do grievous bodily harm, because of his intoxication.  The killing was not preceded by any significant premeditation or planning.
  8. There is the similarity between Baggott and Mr Hutchinson’s killing of his wife in that in both matters the body was disposed of and never found.  Mr Hutchinson’s post-offence conduct showed extreme lack of remorse due to his deceit and lies about his wife’s disappearance, his disparagement of her, and his ultimate fanciful account of how she died which blamed others.  Mr Hutchinson’s offending can be characterised as a more serious example of the offence than Baggott.  Although intoxication does not reduce the criminality for manslaughter, the fact the offenders in Harold and West were intoxicated gives some context for each of the offender’s violent conduct.  No such context can be applied to Mr Hutchinson’s killing of his wife.  In the light of the finding against Mr Hutchinson that he inflicted a violent death on his wife, I consider his offending is at least as serious as that of the offender in West, before the application of s 9(10A) of the Act.
  9. Taking into account that Mr Hutchinson was convicted of a domestic violence offence which under s 9(10A) of the Act must be treated as an aggravating factor in conjunction with his failure to disclose the whereabouts of his wife’s body which meant there could be no forensic investigation into the cause of her death, the deceit he engaged in after she disappeared in order to pretend she was still alive, that he was being sentenced after a trial in which he had not been prepared to plead guilty to manslaughter, the finding that is not challenged that the victim had died as a result of a violent death, and that Mr Hutchinson had shown no remorse does not suggest there was any error in principle in the imposition of a sentence of 15 years six months for the offence of manslaughter that covered Mr Hutchinson’s overall criminality for the unlawful killing of his wife and the related fraud.
  10. Mr Hutchinson does not succeed on his alternative ground for showing the sentence was manifestly excessive.

Order

  1. The order which should be made is:

Application for leave to appeal against sentence refused.

Close

Editorial Notes

  • Published Case Name:

    R v Hutchinson

  • Shortened Case Name:

    R v Hutchinson

  • MNC:

    [2018] QCA 29

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Morrison JA, Mullins J

  • Date:

    09 Mar 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment SC83/16 (No Citation) 31 Mar 2017 Date of Sentence (North J).
Appeal Determined (QCA) [2018] QCA 29 09 Mar 2018 Application for leave to appeal against sentence refused: Fraser and Morrison JJA and Mullins J.

Appeal Status

{solid} Appeal Determined (QCA)