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Children deserve justice, even in death

By Joe Tucci

Posted August 16, 2007 08:19:00
Updated August 16, 2007 11:24:00

Family and friends of Cody Hutchings outside court after sentencing.

Family and friends of Cody Hutchings - Rebecca Brook(L), Jane McMaster (C) and Jessie Maree (R) - console one another outside the Supreme Court after the sentencing of Stuart McMaster in Melbourne. (AAP: Julian Smith)

Little Cody Hutchings died a brutal death. By the time his stepfather had finished with him, Cody was covered in 160 bruises, his liver was torn and he had two skull fractures.

In the Supreme Court in Melbourne on Tuesday, Stuart McMaster was sentenced to a maximum of 13 years' imprisonment with a minimum of 10, after pleading guilty to manslaughter.

It is hard to think of a worse crime. Really, can you imagine any worse form of torture than the repeated and systematic bashing of a young child? Cody would have been in tremendous pain. He would have been in a constant state of terror. Cody was killed by an adult who should have cared for him and protected him.

Yet, the minimum time that McMaster will spend in jail is only half of the maximum of 20 years that the worst kind of manslaughter can attract in Victoria. This equation defies logic. If the maximum sentence were not given in the case of Cody Hutchings, then to what kind of crime would it apply?

The criminal justice system has a history of denying children the justice they deserve.

In the recent trial of David Arney, the courts imposed a nine-year jail term, with a five-year minimum, after he pled guilty to manslaughter and recklessly causing serious injury to five-month-old Rachael Joy Arney. Only later, after community pressure and as a response to an appeal, Arney had his sentence increased to 11 years with a minimum of eight. The appeal court itself commented that the original sentence was grossly inadequate and not in line with community expectations.

New class of offence

Clearly, the current approach requires a thorough review.

It is the very assumptions underpinning the decision making of the courts that are flawed. Children are vulnerable because of their developmental immaturity. They rely on adults around them for their safety. They are smaller. They need us to stand up for them.

Crimes against them, especially violent crimes, should be treated more seriously.

The starting point would be to introduce a new class of offence that deals specifically with child homicide.

The assumptions of this law would be different. It would be assumed that adults who deliberately and repeatedly abuse children know that their violence could result in a child's death. It would be assumed that adults who kill children have made a choice to act in the way that they did. It would be assumed that the community holds preciously the life of all children. It would be assumed that the rights of children should be promoted even in their death.

With these assumptions, the courts would have an obligation to impose more severe sentences on adult killers of children.


In addition, there should be greater emphasis on understanding how child homicide could be prevented.

Could we have done more as a community to notice the torture of little Cody and stopped it from continuing before it was too late? Are we informed enough about what to look out for in relation to abuse? Do adults feel confident about knowing how to respond when they suspect that child abuse is occurring? Are the systems designed to protect children adequate? How can they be improved? Are enough supports available to children?

Cody's death is a reminder that child abuse does not only occur in remote parts of Australia. It happens in our own backyard to children we know.

Treating violence towards children as a serious crime is important. Preventing abuse from happening in the first place is perhaps even more critical.

Dr Joe Tucci is CEO of the Australian Childhood Foundation, a national child abuse prevention organisation focused on providing community education and specialist trauma services for children affected by abuse and family violence.

Tags: community-and-society, child-abuse, family-and-children, law-crime-and-justice, courts-and-trials, children, hoppers-crossing-3029

Comments (30)

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  • Jacqui:

    20 Aug 2007 10:28:32am

    How many children must suffer before we stop giving these vicious evil animals leniency and excuses.

    Many people come from bad childhoods but most rise above it, not use it as an excuse to become one of the most reviled type of person in our community.

    Shame on our legal system. The more our society excuses and gives leniency to perpetrators of these crimes, the more I support capital punishment.

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  • Frances:

    17 Aug 2007 11:19:12am

    I retired from prison service a few years ago, but still have vivid memories of some of the child-killers I had to feed, clothe and give phone calls to. Poor things came from "broken homes", so we were supposed to understand why they murdered a child in their care, one of them so viciously that I and several other officers were in tears when we heard how he did it. Bring back the rope!!

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  • Rob Webb:

    17 Aug 2007 5:37:12am

    Of course most people find the fear and violence as well as a life cut short repugnant. But this issue goes further to the lives of people which are crippled by the effects of physical and emotional abuse, a legacy which they often unfortunately pass on to their children. The issue is not only an issue for these families but for any humane society

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  • Axe:

    16 Aug 2007 11:41:25pm

    Please appeal this judgement.
    I have three five-year-old children. None of them have the physical strength to hurt me.
    Our children are defenceless against the strength of an adult.
    Break the s o b.
    The truth is also, that when they go to prison, its not to keep them from getting out. Its to stop us from getting in.
    Revenge is a dessert best served cold.

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  • mary:

    16 Aug 2007 11:21:07pm

    Well I have spent all afternoon forwarding emails to heads of government, the media, and everyone in my address book. I have started an email campaign containing article and asked all sympathetic persons to email relevent minister's at federal and state levels and their local MP's and everyone in their address book also. We have a good opportunity here as we are in a voting year at Federal level, and they are always scrambling for votes, so take some time out of your busy lives and give this a go, our children will thank you.

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  • Jimbo:

    16 Aug 2007 9:47:58pm

    1. I think the judge knew that the law is inadequate.
    2. I thought that Cody's mother was also assaulted.
    3. John Howard is keen on taking over traditionally states' responsibilities, so why not this one?

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  • DNB:

    16 Aug 2007 8:46:55pm

    1. It is a well researched fact, that once a child (of any sex) enters a step-parent relationship, the risk of abuse by that step parent rises to 600%. Odds that astound me.!
    2. From reading of crimes of violence against women and children, this sort of crime is not unusual, people in 'blended' families, who have not bonded to the children from birth seem to be the worst offenders, this is not uncommon to find, men in particular 'don't particularly 'like' other men's children.
    3. Being a single parent all of my life, and having many single parents as friends; it was all too apparent, when you verblize this ancedotal evidence, all you hear is of all the 'successful' blended families, of course the 'unsuccessful' ones don't always end up in murder, just ongoing abuse.
    4. Perhaps more research needs to be done into what can be done when a man repartners with a woman and there are small children in the family?.

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  • Edie:

    16 Aug 2007 8:15:04pm

    A really well written opinion piece. I agree that we need to institute an entirely new class of offence dealing with homicide. Actually, I'd like to see a number of new tougher laws regarding violence against children in general (including sexual assault). The current laws and subsequent ridiculously light sentences being handed out to thugs like the man who killed this little boy (and other adults who prey on children) are not adequate.

    I also think that any parent who knows his/her child/children are being bashed and beaten by their partner and does nothing about it should be equally culpable.

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  • fallingbear:

    16 Aug 2007 6:59:43pm

    It is disgusting, to give this man just a short stint in jail.
    Although i disagree with the idea of making separate laws for children.
    bullying, bashing, intimidating, terrorising, with the ultimate death of a child, or grandmother, or woman, or man, is all the same thing.
    and should be punished with long jail terms, with hard labour, at the very least.
    After being bashed as a child myself, being bashed as a teenager, being bashed as an adult, it is the same thing, bigger stronger cowards, taking out there anger on weaker people,
    and the courts should be protecting us, whether we be children women, men, or older peope, and they are not doing this.
    shame, shame.

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      • Marrow Master:

        19 Aug 2007 1:09:48pm


        When will it all end?

        OK - we somehow fix this for children. Will we then take up
        the cudgels on behalf of the senile older people? Or should

        Alas courts are rather clumsy devices for coming up with
        verdicts - all too often they take such a long time that the
        insult of justice delayed happens all the time (not by
        intention). But then what could we replace courts with?
        Or what could we add to make the courts more able to
        provide the shield required?

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  • PaulB:

    16 Aug 2007 4:04:25pm

    Bring back the death penalty ! Seriously ! why do we as Australians (with a convict past) have such problems in even putting this as a legitimate argument. In the USA (whom we clearly accept as our economic, cultural and spiritual rulers) this penalty is used in many states for all felons convicted of capital crimes. I cannot think of a worse crime, and feel that little Cody's killer must be laughing all the way to the jail thinking what he has got away with both in terms of his sentencing and his undoubted freedom after a few short years in HRH sanctuary like prison. We as Australians have become too "civilised" and now, nothing makes sense, not even a modicum of justice. I hope Cody's killer rots in hell after his natural death.

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      • Marrow Master:

        19 Aug 2007 1:17:00pm


        Why we do not have capital punishment:

        Basically because of the stink of properly decided Criminal
        Decisions, even though excellent in application of law and
        evidence, turned out to be wrong. And one always has
        as some sort of thread the idea that it is better that
        ten go free rather than one be wrongly punished.

        And of course the idea of the McNaughton Rules (which
        relate to fitness to plead and provide instruction for one's
        defence) adds one more element.

        You failed to note that there are US States that have
        reinstated the death penalty - basically because of heinous
        crimes. Actually Australia still has two capital offences -
        Treason (one gets shot) and Piracy (one gets hanged).

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  • Lovs2look:

    16 Aug 2007 3:07:06pm

    That poor poor child, my heart breaks when I think of what he had to endure. From a parent/guardian/adult this is totally unacceptable behavoir and deserves no less than life in prison.
    How could you do that to an innocent child? Totally flabbergasted...

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  • EMJ:

    16 Aug 2007 2:45:37pm

    Cody's case is absolutely tragic, not only can I not believe that this monster gets off so lightly but I am also angered to hear that the mother of this child has not been held accountable in any way whatsoever.....I know she has to deal with the loss of a child...something no mother should ever go through, but what about her duty to protect her child from this kind of horrible tragedy in the first place? Obviously there are other issues involved as well like the failing Justice System and the overworked Police force but seriously, was there not a point in this womans life when she thought it might be a good idea to protect her child and leave this monster? I know people say that women like this are so worn down that they don't have the strength to stand up for themselves and leave, and that it's a vicious cycle...I too have been a victim of spousal abuse and know how hard it is to leave....but as far as I'm concerned, you are either the woman who puts up with it or you aren't and if you are...that's fine...if it's just you....when there are children involved, is it not your "job" to protect and nuture your child? Give them somewhere safe to learn and grow into wonderful human beings? I'm not saying this woman didn't love her child but I'm sure there were people around her she could have gone to who could have helped her escape this terrible situation. As terrible as these monsters are who violate our children....should some sort of focus not be directed towards educating and empowering the mothers so that they know what their options are and have the backbone to stand up for these innocent little people who are being overpowered and ignored?

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  • dragon lady:

    16 Aug 2007 2:35:53pm

    the legal system dispenses the law, not justice unfortunately, and that will take many more of us to make our feelings known to the politicians for that to change. i want to encourage the feeling that we are all responsible for what happens to children. stepping in (vocally and physically) when we see kids being abused, negleted, and generally badly treated should be an obligation we owe to future societies.

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  • Andy Smith:

    16 Aug 2007 11:57:24am

    I don't understand why the mother wasn't charged also. Why isn't the partner held equally liable? I wish the media would push for a review of these laws, using this case as an example. I don't understand why the maternal grandmother was so upset outside the courtroom - her daughter was present while the child was being tortured to death and could have done something, anything, to remove the child. This case makes me despair.

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  • Ronnie:

    16 Aug 2007 11:47:02am

    I was appalled at the sentence that was given to the killer of little Cody. I have not been able to understand how a person who continously, abuses a child who is defenceless, receives a sentence of a mere 10 years. The courts called it a case of manslaughter. This was premeditated. This was MURDER!!! If little Cody had died as a result of injuries sustained in a fit of rage by this low life person, and if the courts could prove that this low life person did not mean to harm him, then I guess it could be so-called manslaughter. But this person just did not stop. The abuse continued and continued until little Cody died. Where is the justice. This low life knew what he was doing. And he got only 10 years. It is so unjust of the courts to treat a person who, in this case murdered a little innocent child, totally irrespective of the, so called, fact that he may or may or may not have survived to maturity. He could have received government assistance, put in foster care, until he was an adult or even adopted by a more caring person. Yet, the Courts gave this man only 10 years.

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  • Olivia:

    16 Aug 2007 11:40:47am

    A wonderful article Dr Tucci - I hope the issue continues to receive the media attention it deserves.

    Only strong and consistent community pressure will change the sentencing guidlines for offenders.

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  • mary:

    16 Aug 2007 11:15:59am

    Just sent my first email to the Prime Minister. Just look up email addresses via google etc. In case of the Prime Minister's office there was a contact page re all your details so all is official, they can't ignore that as you recieve a reply email, so just copy and paste article and add your own comments at top. Remember you have real power, it's called voting!!!! too easy people!!!!

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      • Dingo:

        16 Aug 2007 11:56:32am

        Please remember that the trial and sentencing were under Victorian law, not Commonwealth law. If you want to email, then send it to the Victorian Premier, not the Prime Minister.

        On the other hand if you want to do something about prevention, the Prime Minister is the one.

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      • annie:

        04 Sep 2007 9:25:10pm

        Thankyou Mary! I'm reading and stressing here while my sweet 8 year old sleeps peacefully...poor little Cody. Will try to follow your great initiative and voice an emailed protest over these pathetic jail sentences for what is a new crime epidemic.

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  • whyhurtkids:

    16 Aug 2007 11:14:16am

    My heart goes out to this poor, poor child. What a life he must have had at the hands of this cretin. I hope and pray that this poor excuse for a man gets shanked in prison. I cannot believe that this poor childs life is only worth 13 years maximum. And you judge - If you cannot stand up for this child and make his life mean something then you should step down and make way for someone who is going to make a difference, after all isn't that why you judges do what you do.

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  • Michael:

    16 Aug 2007 11:10:28am

    I am very disappointed with Australian Justice system, no one judge care about the victim, but they care much more about the crime. there are too many clear cases about this, for the such light sentences, is that will stop the crime, this is another cold-blood crime, it is NOT a man slaughter, it is a murder.

    The law and order are aim to help to have a healthy community, to protect the normal people with their normal life. to protect normal people's life, not the crime's right.

    the boy's life is as cheap as a 10 years with hot shower, hot food, with colour TV and internet!!!

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      • Louise:

        16 Aug 2007 2:10:26pm

        I just want to mention as did Dingo, that the Justice System in Australia is poorly funded by State Governments and ultimately the Federal Government who often escape criticism when people blame "the justice system" for low sentences. Judges do all they can in sentencing within the constraints set by legislation such as the the maximum sentences set by parliament for certain crimes - legislation is therefore the realm of the GOVERNMENT. So if you want to see change Australia, rally against the government NOT the poorly funded departments. Ironically the government underfunds almost everything that could have helped this child- child welfare, hospitals, education, housing, so who is to blame? HOWARD HAS TO GO!

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  • mary:

    16 Aug 2007 10:47:12am

    I totally agree with this article, chidren everywhere are being beaten and brutalised, raped and sexually assulted, molested and emotionally, mentally and physically abused by society, by that I mean we as a whole. It's the old problem of values and vulnerability, not seeing and not hearing and not doing anything to prevent this equals this outcome. We all know it goes on but while it's not in our backyard we ignore it. Well we have a voice people and the power of voting, so lets get moving. Copy and paste this article and email to the Prime Ministers office, the Minister for Child Welfare, the Minister for Justice, local MP's at Federal and State levels. We have days for everythg how about a Child Protection Day every year as well, so we can focus on progress in this matter.

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  • Nicquii:

    16 Aug 2007 10:33:29am

    This is hideous, the nerve of the judge giving this guy such a lenient sentence is completely unjust, why don't we let cody's mum sentence him? I can imagine how much this monster would suffer then - justice would really be served.

    I'm not sure of how this child got all these injuries. whether it was over a long period of time or one day, but if it was over a long period of time why didn't his mother do something about it earlier?

    Just wish Cody had a chance to get away from this and grow up to lead a normal life free of such disgusting abuse. May he Rest In Peace - poor little guy!!

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  • susan:

    16 Aug 2007 9:42:18am

    Obviously the sentencing is very inadequate - we do not want to give this criminal the opportunity to do this again ever and he should be locked up and key thrown away.

    Cody's real parents should have protected him - that was their job and they failed him terribly. Nothing more to say.

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  • Sioboz:

    16 Aug 2007 9:10:58am

    The problem with the legal system is that when a judge makes a sentencing decision, they take into account many things including precedent cases. Judges are notoriously conservative in their dealing of sentencing and thus are unlikely to take any risk in giving an animal like this a harsher sentence. They are afraid of being accused of being "radical" in their sentencing. In some instances this conservatism serves us well - however it fails us dismally in a case such as this. What price the life of a little boy? 10 years apparently. Also, and experience tells me this, the more violent the crime the more conservative the sentences are. There is alot of care given to the defendant and often all of the lawyers and judge/s involved have absolutely no emotional attachment to the people involved: all that is important is so called "clever" legal argument. One instance I can remember seeing this was during an attempted murder trial: prior to reaching the final stages of the trial and when awaiting the entrance of the jury, the judge, DPP lawyer and defence lawyer were all having a "witty" debate over some latin saying on a plaque situated above the judge's head. The victim, who was sitting in the gallery, sat there mortified watching these silly men laughing at each others attempts to speak latin (it was a kind of macho competition). Minutes later, when the jury entered, they were still wiping away tears of laughter and shortly after this, they were all supposed to be concentrating on a job the result of which would impact on the lives of a number of people.

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  • T Ellis:

    16 Aug 2007 9:04:21am

    One little life wasted and one adults life temporary incarcerated. Is our justice system that fair that we can take away whole lifes and punish the ones that did it with a half sentence. Is our justice system saying that Cody had only a maximum of 13 years left of life maybe ten... The justice system should look at murder and "manslaughter" charges with a much more serious thought as a sentence comes and go but a single life can last for 90years.

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  • Donna Evans:

    16 Aug 2007 8:56:11am

    Having talked to one particular person that has had the bad luck to have been beaten to a pulp by his stepfather, the deep hurt that this person feels and the sense of betrayal that he feels having had his mother just standing by and not stoping this abuse. It is not up to anyone else but those people directly involved and standing idly by to stop this abuse or go to jail themselves. It is just so easy.

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