Fin J. Ross - Codys Law

CODY'S LAW

by

Fin J Ross

The brutal bashings of a five-year-old Cody Hutchings by his step-father promoted amajor change in state legislation in Australia.

After Stuart John McMaster was found guilty manslaughter, the Victorian State Governmentintroduced the new offence of child homicide.

Cody Hutchings 'crime' was that he didn't respond quickly enough to whatever wasasked of him by his de facto stepfather. This was hardly surprising though, since Cody suffered froma congenital condition which results in delayed development, impaired motor skills and irritablebehaviour. And besides, Cody was only five years old.

Cody Hutchings 'sentence' was ... death.

Stuart John McMaster's crime was brutalising this defenceless little boy forseveral weeks inflicting so many injuries that his tiny body could no longer endure. He died a slow,painful and torturous death. Stuart was a grown man, a drug addict, a strict disciplinarian and asadist.

Stuart McMaster's sentence was ... 12 years, 6 months, with a minimum of 10 years.

Despite having admitted to police that he had struck Cody up to 25 times on the dayhe died and innumerable times in the weeks before, Stuart McMaster pleaded 'not guilty' to murder inJune, 2007. The jury was unable to agree on a guilty verdict at that trial and so McMaster was ableto cop a plea for manslaughter, to which he pleaded guilty. His sentencing upon conviction formanslaughter, on August 14, 2007, prompted outrage among the Victorian public and prompted the statePremier, John Brumby (in only his third week in office) to announce the creation of new childhomicide legislation.

The evidence given at McMaster's original trial, later summed up by Justice David Harper at hissentencing hearing, painted a picture of a brutal man whose uncontrollable temper was unleashed notonly on young Cody but also on his de facto wife, Belinda, whenever she tried to intervene to defendher son. His only defence was his use of both illicit and prescribed drugs. And his only remorse wasthe fact that his repeated atrocities were discovered only because his victim ultimately died.

Justice Harper highlighted the fact, however, that McMaster had not been charged with assault forany of the beatings inflicted before the day of Cody's death. He appeared for sentencing only on onecount of manslaughter and one count of intentionally causing injury, relating to an assault onBelinda, of which the jury at his earlier trial had already found him guilty. At the time ofMcMaster's sentencing, the maximum penalty for manslaughter in Victoria was 20 years imprisonment.

Speaking to the count of manslaughter, Justice Harper said ... 'the act by which the crime wasconstituted was not only a conscious and voluntary act on your part, but was also one that wasunlawful and dangerous; dangerous, that is, in the sense that a reasonable person in your positionmust have realised that Cody was thereby exposed to an appreciable risk of serious injury.

'It is also relevant to note the context in which the fatal assault occurred. It was one of aseries of physical attacks on Cody that were systematic and serious. Some of them were brutal. Youhave not been charged with these other assaults, and I therefore cannot and do not impose anypunishment for them. On the other hand, in this case the context necessarily affects my response tosubmissions that you are remorseful.

'The context is also important for another reason. I am required by law to take into account thenature and gravity of the offence. Just as any sentence must reflect the fact, if it be the fact,that the offence was an isolated and aberrant act, out of character with the typical behaviour ofthe offender, so must a sentence reflect the fact, if it be the fact, that the offence for which itis imposed was one of a series of acts of cruelty inflicted upon a young and defenceless child, who,as a result, is now dead.'

Cody Hutchings, his younger brother Christian, and their mother Belinda McMaster (whoco-incidentally shared Stuart's surname although they weren't married or related) first came toshare their home with Stuart McMaster in June 2005, when Cody was four and a half years old. For thefirst nine months or so, the four lived a 'relatively normal' family life. Early on, McMasterclaimed to have been as happy as he had ever been and he enjoyed positive interaction with Belindaand her two young boys.

As Justice Harper said to Stuart McMaster ... 'You were affectionate towards them all. You joinedthe boys in their play, and accompanied the family on outings. You exchanged presents. Christmas2005 was spent happily together, with Belinda's mother joining you.'

He went on to say that it was significant that during this period...'you were a consumer of bothillicit and prescribed drugs. If one drug was not available, you took another. You put this factforward as at least a partial explanation for what you concede is totally unacceptable conduct'.

According to a report prepared by consultant forensic psychologist, Elizabeth Warren, McMasterstarted drinking alcohol and using cannabis at the age or 12 or 13 and then three or four yearslater turned to heroin. Eighteen months before moving in with Belinda, he decided to cease usingheroin and was prescribed Buprenorphine to help him do so. However his rejection of heroin waslargely cancelled out when he began using amphetamine. The report stated that 'amphetamine...can becombined with Buprenorphine without the advserse effects that occur when Buprenorphine and heroinare used together'.

Justice Harper told the court: 'The combination nevertheless had its own adverse effects. Drugsinduced in you occasional feelings of paranoia and, more especially, an inability to control youranger. This inability, it was submitted on your behalf, included an inability to understand thedegree of the force of the assaults you had, by the time the family moved to Hoppers Crossing in orabout December 2005, begun to inflict on the young child in your charge. So, although you may haveyourself suffered some adverse consequences of your continued involvement with drugs, it was Cody,not you, who was the true victim of them'.

He went on to give a chilling account of the injuries sustained by Cody in the series of brutalattacks inflicted by McMaster, using his hands and feet and a leather belt he had modified into astrap.

'In the weeks, perhaps as many as eight, before Cody's death, your relationship with him becameprogressively more dysfunctional. He was not an easy child to manage. He suffered from WilliamsSyndrome. This is a genetic condition that results in delayed development and associated behaviouraldifficulties, impaired motor skills, poor sleeping and irritable behaviour. Nevertheless, it was notthese aspects of Cody's personality that caused your difficulties with him.

'The source of the problem seems to be more complicated. Ms Warren describes the strangelyunfortunate connection between your affection for Cody and your view that, because you demonstratedthis affection for him, he should have reciprocated by reacting quickly to whatever you asked ofhim. According to the evidence, his failure to respond with the speed that you thought appropriatewas a significant trigger of your outbursts of anger. And while Williams Syndrome may have played apart in any tardiness in Cody's responses, your expectations of a five-year-old child were in anyevent totally unrealistic and inappropriate.

'Your failure to appreciate the realities of childhood gave rise, it seems to me, to anotherreason for your conduct towards Cody. As you told the police, if his behaviour irritated Belinda,she would yell. Your solution to this problem was to slap the boy, or even strike him with a beltmodified for use as an instrument of punishment. To this extent you assumed on her behalf the roleof disciplinarian. As Ms Warren records in her report, you became the 'strap man' and 'there was notsufficient internal or external censure of (your) actions to change the situation.' The report alsorecords that Cody's pleas: 'Don't call the strap man, Dad' were not sufficient to deter thebrutality of your behaviour in circumstances in which the boy's mother approved some aspects of yourmethods of discipline, while for your part you were not prepared to exercise self-control.