R v Hucker

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

REMARKS ON SENTENCE 1 His Honour: On 21 October last the offender, Mason John Hucker, was arraigned before me on an indictment containing a count alleging that on 19 March 2001 at Euabalong he murdered Kenneth Hutchings. The offender pleaded not guilty and a trial commenced before a jury and myself. On the seventh day of the trial, almost at the end of the defence case, the offender asked to be re-arraigned on the indictment. He then pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment. As a result, I discharged the jury and convicted the offender of that offence. 2 The basis upon which the plea of guilty to manslaughter was given by the offender and accepted by the Crown was that at the time of the killing of the deceased the offender was suffering from a substantial mental impairment within s 23A of the Crimes Act. At the time of discharging the jury, I indicated my personal view that the acceptance of the plea by the Crown was completely appropriate. In fact, I went further and indicated to the jury and members of the public, who were present, that in my opinion, a verdict of not guilty of murder but guilty of manslaughter was the only appropriate verdict upon the evidence led before the jury. The evidence that the offender was suffering from a psychotic episode at the time he shot the deceased was overwhelming. There was simply no basis upon which the jury could reject that evidence. While s 23A gives rise to an issue which is quintessentially one for the determination of a jury, it would have been perverse for the jury to have convicted the offender of murder in light of the undisputed evidence before them as to the circumstances of the killing and the offender's mental state at the time. 3 There was very little dispute of fact between the parties. By the time the trial had reached the stage where the plea was proffered and accepted, the only real matter of controversy was the extent to which the offender's mental state was affected by the illness from which he suffered. But even the resolution of that controversy could have had little or no bearing upon the proper verdict. There was no doubt that at least the offender's capacity to understand events was substantially affected by the psychosis which was then perverting his perceptions of what was occurring around him. 4 The offender and the deceased were good friends. On the two nights preceding the killing, they and the deceased's father, Mr Raymond Hutchings, had been shooting pigs and kangaroos from the offender's vehicle that had been specially modified for that purpose. On most occasions the offender, a holder of a firearm licence, was the shooter while the deceased assisted in spotlighting the animal to be shot and then collecting the animal after the kill. Mr Hutchings role was to hand a round to the offender just before an animal was shot. The offender would load the weapon and fire a single shot, notwithstanding that the weapon was equipped with a five-shot magazine. After each shot was fired, the offender would eject the spent cartridge handing it to the deceased's father who placed it in the tin of empty cartridges between him and the offender. From time to time the deceased and the offender would participate in gutting the slaughtered animals so that they could be more easily transported on the offender's vehicle. 5 Each morning following the two shooting trips the offender, the deceased and Mr Hutchings, went to the "chiller" operated by the offender's father to unload the evening's kill. The shooting party then returned to their separate lodgings to sleep the rest of the day in preparation for the next night's activities. 6 The third night of shooting progressed very much as had the earlier two expeditions. The principal shooter was the offender although on occasions the deceased also fired the weapon. As had occurred on the earlier two trips, the offender and the deceased smoked cannabis provided by the deceased at the time of the gutting. However, the evidence of Mr Hutchings was that the offender had consumed little on this particular night because the deceased's supply of the drug was running out. There is no suggestion that the offender was at any stage significantly under the influence of that or any other drug. Certainly there was no noticeable adverse affect of the drug upon the offender's marksmanship, which was prodigious. 7 Throughout this hunting expedition as with the other two, the offender and the deceased seemed to be the best of friends. There was nothing overheard by the deceased's father which in any way suggested that there had been any change in the relationship between the deceased and the offender. 8 At about 5.00am on the third morning the offender shot a kangaroo. Just prior to the shooting Mr Hutchings had handed a cartridge to the offender who discharged it to bring down the animal cleanly. Following the usual pattern, the deceased left the vehicle to retrieve the dead animal, the spotlight on the vehicle illuminating the area where he was. The deceased's father was sitting in his position beside the offender rolling a cigarette for his son while waiting for him to return. Suddenly he heard the offender's rifle discharge. The offender was sitting with the rifle to his shoulder but not in the normal position he used for shooting from the vehicle. Mr Hutchings asked the offender what was happening and then heard his son cry out and say, "Mason what are you doing?" Mr Hutchings asked the offender why he did it and the offender replied that the deceased had raped his mother, sister and grandmother. 9 The deceased's father left the vehicle to retrieve his son who was mortally wounded. The offender went with him to assist. The deceased was returned to the vehicle and placed sitting upright in the middle of the front seat. It later became apparent that he had been shot in the groin. The offender proceeded to drive the vehicle back towards Condobolin, but it had mechanical trouble and he was forced to seek help from a passing farmer before he could re-start the engine. On a number of occasions during the drive the offender mentioned the fact that the deceased had raped his mother, sister and grandmother. During the return journey the deceased died. When the offender was told of this fact by the deceased's father, he said words to the effect of "he deserved it". 10 The offender was having so much trouble with his vehicle that he decided to jettison the night's killing. At about this time, the deceased's father asked him how he thought he would get away with killing the deceased and the offender replied that he would bury him in the bush. A little later the offender told Mr Hutchings that he should say that the deceased accidentally shot himself and gave him an account that he was to relate after their return. The offender's vehicle was eventually able to make it to the town of Euabalong where he rang his father and left a message on his answering machine requesting that he meet them at a spot along the road and tow the vehicle back to Condobolin. 11 The offender's father met up with them and was told by Mr Hutchings that the deceased had accidentally shot himself. The police were contacted and when they arrived the offender gave a lengthy account of the circumstances surrounding the death of the deceased in accordance with the version that he had earlier concocted. Mr Hutchings told the police he would tell them what happened but not at that place and at that time. Later when alone with police, he told them the true circumstances in which his son met his death. The next day the offender was involved in a conversation with a female friend in which he denied the killing and allowed her to believe that the deceased's father was responsible. The offender was eventually arrested and, after he declined to participate in an interview with investigating police, was charged with murder. He was, thereafter, remanded in custody. 12 The offender did not give evidence before the jury. Apart from the version he had concocted shortly after the death of the deceased his only other accounts of the killing were those that he had given to psychiatrists who examined him in preparation for his trial. Those accounts are unreliable and in my view do not assist in determining the mental state of the offender at the time of the killing or the appropriate sentence to be imposed upon him. They are inconsistent in themselves and do not stand scrutiny against the account given by Mr Hutchings in evidence before the jury. There was no suggestion that his account was other than truthful and accurate. It is likely that the offender no longer has any real memory of the events and circumstances surrounding the killing and has become more deluded about what did or did not occur. 13 The only matter of relevance in the offender's accounts is that he has maintained on occasions that the discharge of the weapon was accidental and that he did not intend to harm the deceased. But his versions of the manner in which the weapon discharged are not consistent and they find no support in the ballistics evidence. The fact that the offender has maintained these accounts merely highlights his lack of insight into his illness or the consequences of it for him and others. I shall return to this matter shortly. 14 It is unnecessary for present purposes to detail the history of the offender's illness. It is clear that he has been suffering from schizophrenia for some years. It manifested itself in behaviour that was observed by members of his family before the killing but they clearly did not attribute to those matters the significance that they now have. There are instances of clearly paranoid behaviour in the years preceding the killing but no acts or threats of violence either to himself or others. The offender has for all intents and purposes no relevant criminal record. A firearms offence in 1998 that was dismissed under the then provisions of s 556A of the Crimes Act is of no relevance. 15 Following the killing, the offender's mother became so concerned about his behaviour that she referred the offender to a community mental health clinic. The offender was then for the first time diagnosed as suffering from paranoid schizophrenia. That diagnosis did not take into account any of the circumstances surrounding the killing. The offender was placed on anti-psychotic medication. Since his arrest he has been under the care of psychiatric staff of the Department of Corrective Services so far as his remand status and the needs of the justice system have allowed. He has been constantly under a controlled regime of medication. 16 The killing of the deceased was undoubtedly a direct result of the effect of the offender's mental abnormality. It occurred during a florid psychotic episode when the offender was deluded by statements he attributed to the deceased that provoked him to the point where he loaded and discharged a rifle at him from a distance of about 70 metres. There is little doubt that the offender's perceptions and understanding of events was seriously affected by his delusional belief that the deceased had admitted to sexual abuse of the female members of the offender's family. The offender's delusions apparently centre on matters of a sexual nature and it is significant that the deceased was shot in the groin just above his genital area. But I do not believe that at the time of the shooting the deceased's understanding of the nature of his act, its consequences, or its wrongfulness was seriously affected. The offender believed his actions were justified at the time by reason of his deluded belief about the deceased's conduct. 17 This is a serious case of manslaughter notwithstanding that the shooting was an almost instantaneous reaction to the sudden onset of a psychotic episode. The deceased was shot in cold blood, the offender having to obtain a cartridge and reload the weapon in order to carry out the killing. I believe that the offender must have intended to kill the deceased. He knew all too well the effects of a wound to the torso of a living creature: the placement of the wound was probably intentional but not so as to limit the amount of harm inflicted. His reaction at the time of being told of the death confirms that this was his intention. The story he concocted to be told on their return shows that he understood to some degree the nature of what he had done. 18 The sentencing of a mentally affected offender for a serious criminal offence such as homicide is a difficult task. As was pointed out by members of the High Court in Veen v The Queen (No 2) (1987) 164 CLR 465 the fact that the offender is mentally ill points in two different directions in the determination of the appropriate sentence: one path indicates a shorter sentence to mark the reduced criminal responsibility of the offender, the other is the necessity of imposing a sentence commensurate with the seriousness of the offence and to protect the public from the effects of the illness upon the offender. It is also necessary to bear in mind that although the offender is being sentenced for manslaughter, in this case he is to be punished for conduct that would amount to murder except for the presence of the mitigating factor found in his psychiatric disturbed mental state. The starting point of sentencing for this offence is that it involves the unlawful taking of a human life and the appropriate sentence must reflect the gravity of that objective circumstance. The abnormality of mind, which reduces the offender's criminal responsibility for the deliberate and intentional act causing the death of the deceased, does not absolve him of criminal responsibility for that act: R v Blacklidge (NSWCCA, 12 December 1995, unreported). 19 The offender is now aged 27 years. As I have already indicated he has no criminal record of any significance. At the time of the killing, he was living in the Central Coast with his mother and brother and working as a chef. There is little in his early background or upbringing of relevance having regard to the fact that this offence is a direct result of his mental illness. Although through much of his adult life he consumed prohibited drugs on a recreational basis, there is nothing to indicate that his use of those substances led to any other criminal or antisocial behaviour. I should note that it has not been shown that his mental infirmity is a result of his drug usage. If the symptoms of the offender's illness could be kept in check by appropriate medication and counselling, the high probabilities are that he would return to a relatively normal and worthwhile role in the community. He has offers of support on his release from his mother, her brother, his siblings and staff of the community health clinic at which he attended in respect of his illness prior to his arrest. 20 I have already indicated that one of the major concerns in sentencing for an offence of homicide committed by a mentally ill person is the potential dangerousness of that person in the foreseeable future. The present status of the evidence does not allow me to determine either that he will be a potential danger to others at the time when he is due for release or that he will present no significant risk to the community at that time. In this regard, Dr Jolly in his most recent report stated:

"[The offender] should now be described as suffering from chronic paranoid schizophrenia...not drug-induced. This writer does not think that [his] illness has been adequately treated. In the last 12 months it's been treated on a "risk" rather than a "need" basis. The fact that [he] is still hearing voices, in such a florid way, is not good in prognostic terms… but what's not clear is whether he suffers a "drug-resistant" psychosis, or whether he simply hasn't had adequate assessment and treatment. It has to be said, Corrective Services do not have adequate resources to assess, treat and manage all those suffering from major psychiatric illnesses within the prison population. But what (to this writer) has not been addressed, is the possibility that depressive symptoms are fuelling the thought disorder, and whether or not "guilty" feelings might be a provocative factor as well. Even with partial insight, [he] uses defences hugely (in a psychological sense) against the probabilities that he did deliberately aim the firearm at or near to the deceased. Intervention of a suitably experienced clinical psychologist might be crucial here… to help [him] "accept and adjust", and therein the acute impact of his psychosis might recede." 21 Dr Jolly concluded that the offender appears not to represent a danger to the inmate population at present as there are no psychotic phenomena, such as command hallucinations, that indicate that he will actively harm persons. However the doctor could give no indication of future prognosis and the offender's risk to others on release would depend upon his care and management while in custody. 22 Dr Carne is of the view that the risk of future harm could be reduced significantly by, firstly, the treatment of the offender's psychotic symptoms and, secondly, abstinence from substances such as cannabis and other prohibited drugs. In his view the risk of future harm is diminished by the fact that the killing of the deceased occurred in the presence of an acute psychotic episode. The doctor was also of the view that regular work and a stable home environment will assist the offender's rehabilitation. 23 Matters of concern at the present time seem to me to be the following. Firstly, the offender has returned one positive urine sample while in custody. I do not know the circumstances in which that incident occurred but it indicates that the offender has little or no insight into the deleterious effects upon the management of his mental illness by his use of non-prescription drugs. Secondly, the offender has shown no real benefit by way of a reduction in the symptoms of his psychosis from the medical regime to which he has been subject while in custody on remand. However, his mother gave evidence that there has been very recently some sign of an improvement in his ability to relate to her and her brother for longer periods without becoming distracted. Dr Jolly also indicated that his latest interview with the offender, which was during the course of the trial, revealed some improvement in the offender's affect. There is also some reference to insight and appropriate response in the prison medical reports. Thirdly, the offender has been in almost constant protective custody while on remand because of his belief, either real or delusional, that there are persons of aboriginal race in the prison who wish to harm him for his shooting of the deceased, an aboriginal. There has been one instance in which the offender was apparently attacked by two aboriginal persons and received relatively minor injuries as a result but I know nothing about the circumstances surrounding this incident. The evidence suggests that the offender's response to treatment may be adversely affected by his lack of opportunities for useful and constructive work because of his placement on protection. However, as the Crown pointed out, the offender can be treated as a forensic patient under the Mental Health Act, if necessary, to relieve him of many of the difficulties he might face in prison and to better attend to his treatment. 24 In sentencing the offender, I do not believe that it is appropriate to have regard to general deterrence, as would normally be the case in relation to the intentional use of a firearm to kill or seriously injure another person. Nor is specific deterrence required at this stage. I am prepared to take into account the fact that at a relatively early time, at least after the committal proceedings had concluded, the legal representatives for the offender indicated that he would be prepared to plead guilty to manslaughter. However, the Crown Prosecutor told defence counsel, shortly before the trial commenced, that he would not accept a plea of guilty to that offence. In the circumstances of this case the offender was justified in not entering that plea before the jury. The offender is entitled to a discount of about 15 percent by reason of his offer to plead guilty to manslaughter following committal proceedings notwithstanding that the plea was not formally entered until almost the end of the evidence in the defence case. There is no apparent remorse or contrition, chiefly because he has no insight into his behaviour. 25 I also take into account in sentencing the offender that he has spent the period of remand almost constantly in protection of some form or another and that he may have to spend some part of his sentence in that type of custody with its consequential difficulties and disadvantages. However, I do not believe that custody will exacerbate the offender's illness although clearly his best hope for treatment to take effect will be on his release into the care of his mother and the community health workers. Hopefully when he is sentenced and he can be settled within an appropriate part of the prison system on a more permanent basis than remand allowed, both he and the corrective services staff can pay more attention to treating his illness. 26 There are clearly special circumstances present which justify a significant variation in the proportion of the parole period to the total term of the sentence. What is needed in this case is for the offender to be able to persuade the Parole Board at a relatively early stage in the sentence that he can be released safely into the community under supervision and subject to an appropriate treatment regime. Whether or not he is released at the end of his non-parole period will of course largely depend upon the success of treatment and counselling in custody to reduce the effects of his illness upon him if he is released at the end of the parole period. There will follow a lengthy period of parole during which his use of non-prescribed drugs can be monitored and his treatment regime carried out. 27 This is a sad case where one young innocent life has been lost and another destroyed as a consequence of the psychiatric illness from which the offender suffers. As is so often the case the fact that the offender was mentally ill was not apparent until a catastrophic event occurred as a result of it. I have received in evidence a victim impact statement written by the deceased's mother describing the appalling effect that the killing of her son had upon her. Such material cannot be relied upon for the purpose of increasing the sentence of the prisoner and has not been used by me in any way to aggravate the severity of his crime. But the reception of such material permits the family of Ken Hutchings to participate in the proceedings by expressing their grief and loss as a result of his death. It reminds the court, if it is necessary to do so, of the real human tragedy involved in matters that come before it. I understand that it is particularly difficult to come to grips with the death of a treasured family member when it occurs so pointlessly and unexpectedly. I can only imagine the appalling situation in which the deceased's father found himself when the offender shot his son for what was clearly an insane reason many miles from help. His evidence in the trial was remarkable in that it appeared to be given from a completely objective point of view describing simply what occurred in a way that proved of great assistance to everyone involved in these proceedings. The court expresses its sympathy and understanding to the deceased's family. 28 I also understand the dreadful effect this incident must have had upon the family of the offender who were quite unaware, and they could not reasonably have known, of the offender's severe psychiatric disturbance or the danger he presented to those, such as the deceased, in close contact with him. 29 The offender is sentenced to imprisonment for 9 ½ years. There is to be a non-parole period of 5 years. The sentence is to date from 17 May 2001 and the offender is eligible to be released to parole on 16 May 2006. I have reduced the sentence to be imposed upon the prisoner taking into account both the fact that he has been in protective custody and that he might remain in such custody for some period of his sentence. I have also reduced the sentence by 2 years as a result of his plea of guilty to the offence of manslaughter. **********

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