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Media Release - 14 August 2007 - Stuart McMaster

Stuart McMaster was today sentenced by Justice Harper to 12 years and 6 months imprisonment, with a non-parole period of 10 years, for the manslaughter of 5 year old Cody Hutchings. McMaster had originally been tried for murder but, after a jury failed to deliver a verdict on that charge, McMaster pleaded guilty to manslaughter.

All sentences imposed in the higher courts are subject to review by the DPP with a view to possible appeal to the Court of Appeal in the event that the sentence is arguably manifestly inadequate and that it is in the public interest to appeal.

The sentence in the McMaster case is currently being reviewed. This involves a close analysis of the facts, the mitigating and aggravating circumstances, and the legal factors which affect the bringing and allowing of such appeals. That process also involves a careful examination of sentences imposed in comparable cases and consideration of remarks made by the Court of Appeal when considering appeals.

While that review has not yet been completed, the Acting Director has noted that this sentence is at the upper end of sentences imposed in Victoria for manslaughter in recent years and that it is as high or higher than many other sentences imposed in comparable manslaughter cases.

Among the other factors to be taken into account is the legal doctrine of “double jeopardy” as it applies in appeals, namely that even in the event of a successful Director’s Appeal, the Court of Appeal would not impose the sentence which it might find should have originally been imposed – it would impose a slightly lesser sentence, to reflect the fact of the convicted person having been through the sentencing process twice. This is what occurred in the recent case of ARNEY where the Court of Appeal acknowledged that, but for the principle of double jeopardy, it would have imposed a higher sentence than that which it ultimately imposed.

The Acting Director will also consider the outcomes of other recent comparable Director’s Appeals, such as ARNEY, in which a sentence of 7 years for manslaughter was increased upon appeal to 9 years.

After considering all of these factors, the Acting Director will determine whether to appeal in this case. The time limit for bringing such appeals is one calendar month from the date of sentence.