Cody's Law
Page 2
'On the other hand, this was a killing the nature and gravity of which can hardly be over-emphasised. You were in a position of trust and of power. You abused both, at the cost of a young child's life. The act of standing over a five year old child who is seated on the ground, and then partially standing on his abdomen or pushing your feet into his stomach, with such force as to do fatal damage to his abdominal cavity, is one that - even when seen outside the brutal context in which it took place - is of itself utterly abhorrent.
'All life must be protected. Because of their vulnerability, young lives demand special measures to ensure their safety. The death of a child as the result of an assault by a mature adult in the context of a sustained period of abuse is an affront to any civilised community. One measure open to the courts is to impose sentences that will act as a general deterrence to those who might be tempted to abuse the young and powerless. The systematic cruelty to which you subjected Cody is absolutely and unequivocally intolerable.'
Having said this and allowing for the fact that the maximum penalty for manslaughter at the time was 20 years and the maximum for intentionally causing injury was ten years, Justice Harper could have set a sentence of between 20 and 30 years. Instead, on the charge of injuring Belinda, his sentence was six months, bringing his total sentence to 13 years. And since, at the time of sentencing, Justice Harper allowed for the 355 days McMaster had already served, he could be eligible for parole in 2016.
Within days of the sentence being handed down, Victorian Premier John Brumby, assigned the Deputy Premier and Attorney-General, Rob Hulls, to prepare legislation specifically for the crime of child killing, expecting it to go before Parliament before the end of 2007. In announcing the law reform, Mr Brumby, referred to children as 'some of the most vulnerable and defenceless members of our community.'
'There is no greater tragedy than the killing of a child and all Victorians are appalled when such a tragedy occurs,' Mr Brumby said.
The legislation, introduced to the Victorian Parliament on December 5, 2007, and passed into law in early 2008, allowed for a new offence of child murder with a maximum penalty of 20 years imprisonment - equivalent to the maximum for manslaughter.
The crimes act 1958 was duly amended with the insertion of Child homicide:
5A A person who, by his or her conduct, kills a child who is under the age of 6 years in circumstances that, but for this section, would constitute manslaughter is guilty of child homicide, and not of manslaughter, and liable to level 3 imprisonment (20 years maximum).
The Office of Public Prosecutions announced, on September 6, 2007, that it would appeal McMaster's sentence, as had been done just a few weeks earlier when child killer, David Scott Arney's sentence for the murder of his five-month-old daughter, Rachael Joy, was extended from nine years to 11 years.
Cody's father, Chris Hutchings, was elated at news of the appeal, having been disappointed with the original sentence. He told reporters after the announcement: 'When it comes down to it, life isn't long enough - not for killing my son.'
Unfortunately, the DPP's appeal to have McMaster's sentence extended to 15 years was not successful. On June 12, 2008, Court of Appeal Justices David Ashley, Marcia Neave and Lex Lasry dismissed the appeal, ruling that the DPP had failed to show the sentence was 'flagrantly, shockingly, inadequate”.
The three judges noted that McMaster's sentence was already the highest imposed for manslaughter of a child and deemed that to increase that would be "far outside past sentencing practice ".
They also found that if McMaster had not pleaded guilty he may have escaped punishment for the killing.
For many, Cody Hutchings will be remembered not only for his angelic face and his brutal death, but for the instigation of a tougher benchmark in sentencing people convicted of killing children. The new legislation is widely regarded as 'Cody's Law'.
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Copyright © Fin J Ross
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National Library of Australia Cataloguing-In-Publication data:
Ross, Fin J
Cody's Law
ISBN 978-0-9873419-8-3
Cover Design © Rae Cooper