Supreme Court New South Wales Medium Neutral Citation: R v Paul Wilkinson [2019] NSWSC 235 Hearing dates: 1 February 2019 Decision date: 08 March 2019 Jurisdiction: Common Law Before: Hamill J Decision: Sentenced to imprisonment for 8 years with a non-parole period of 4 years and 9 months. Catchwords: CRIMINAL LAW – sentencing – manslaughter – where offender partner of principal offender – killing of ex-husband – principal seeking to extract confession of mistreatment of children – planned but chaotic joint criminal enterprise – brutal assault – victim dies of asphyxiation – body dumped by side of road – aggravating and mitigating features – parity of sentencing – offer of plea rejected – motivation unclear – something in the nature of love Legislation Cited: Crimes Act 1900 (NSW), s 24 Crimes (High Risk Offenders) Act 2006 (NSW), s 25C Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3) and 28(4) Cases Cited: R v Do (No 4) [2015] NSWSC 512 R v Halloun [2014] NSWSC 1705 R v Hines (No 3) [2014] NSWSC 1273 R v Hutchison & Wilkinson [2018] NSWSC 1759 R v Raquel Hutchison [2019] NSWSC 25 R v Sumpton (No. 4) [2015] NSWSC 684 Sumpton v R [2016] NSWCCA 162 Category: Sentence Parties: Regina Paul Wilkinson Representation: Counsel: M Cunneen SC (Regina) M Ainsworth (Mr Wilkinson) Solicitors: Director of Public Prosecutions (Regina) McGirr Lawyers (Mr Wilkinson) File Number(s): 2014/00308929 Publication restriction: See R v Hutchison, Wilkinson & Greentree (No 3) [2018] NSWSC 1758. Suppression order over the surname of the deceased and the children who gave evidence in the trial. Pseudonyms to be used. Judgment 1. Paul Andrew Wilkinson is to be sentenced for his role in the unlawful killing of Brett Walker on 20 October 2014. He stood trial with a co-offender, Raquel Hutchison. Each offender was charged with murder and the trial was conducted by Judge alone. On 16 November 2018, both offenders were found not guilty of murder but guilty of manslaughter. [1] While the two offenders were convicted of the same crime, the basis of their liability, their motivation, and their particular roles in the killing were very different. 2. The offence is an extremely serious one and this is reflected in the maximum penalty of 25 years. [2] Ms Hutchison was sentenced on 31 January 2019 to a total sentence of 9 years with a non-parole period of 5½ years. [3] The facts of the offence 1. The facts and circumstances of the killing, and Mr Wilkinson's role, have been set out in the verdict judgment. It is not necessary to repeat all of the distressing detail of the brutal killing. For present purposes, it is sufficient to draw the reader's attention to those earlier judgments and to provide the following brief summary of the events that led to, and followed shortly after, Mr Walker's death. 2. The victim of the crime was Ms Hutchison's former husband. They were involved in protracted and bitter Family Court proceedings which culminated in court orders that their two young children were to live with Mr Walker. The Family Court made orders for access visits to Ms Hutchison. By the time of those orders, Ms Hutchison was living with Mr Wilkinson at his home on the Central Coast. When the two young children were in the care of their mother, they stayed with her at Mr Wilkinson's home. As a result, Mr Wilkinson became quite close to the children. The evidence at the trial, particularly that given by the children themselves, suggested that they were fond of Mr Wilkinson and that he provided appropriate and adequate care for them. 3. There was a body of evidence, particularly in the form of text messages and agreed facts, which established that Ms Hutchison was extremely disappointed by, and angry with, the custodial arrangements relating to the children. By October 2014, she had come to hate her ex-husband. Her hatred was as intense as it was irrational. To add fuel to the fire, there were ongoing suggestions that Mr Walker had mistreated both of the children. There was some (unproved) suggestion that Mr Walker had somehow interfered with April in a sexual way. It was not completely certain whether April actually complained, or hinted, that there was some indecency in the relationship. However, it was clear that Toby made allegations to Ms Hutchison and others that he was physically assaulted by Mr Walker. The evidence that Toby made various complaints was very strong and included allegations he had made in the course of the Family Court proceedings and recorded by independent officers and counsellors of that Court. Some of these complaints and allegations were made in Ms Hutchison's absence, a fact that was important in my finding that Toby did not simply say what his mother urged him to say, or wanted him to say. More temporally connected is the fact that, on the weekend before Mr Walker was killed, Toby made further allegations that he was assaulted by Mr Walker. This may have manifested itself in injury, although Toby was not taken to a doctor. There was evidence, which I accepted, that Toby made or repeated this allegation in the presence of Mr Wilkinson. I should add that no assault by Mr Walker of either child was proven and that Toby ultimately recanted his allegation. Nothing in this judgment should suggest that there was any finding that Mr Walker was other than a loving and caring parent. 4. By that stage, and for a long time before, Ms Hutchison was suffering from a number of mental/psychiatric illnesses. These made her hypervigilant to the concerns she had for the children. Many, if not all, of these illnesses had their genesis in the fact that Ms Hutchison herself was sexually abused by her stepfather when she was a child. Her own psychiatric vulnerability fed in to the allegations made by Toby, and perhaps hinted at by April, and led to the ugly events surrounding Mr Walker's death. This had a direct connection to why the events unfolded as they did and an indirect relevance to Mr Wilkinson's involvement and criminality. (I note in passing that the evidence of the psychiatrists led in the trial was not admitted against Mr Wilkinson.) 5. The children spent the weekend of 18-19 October 2014 with Ms Hutchison and Mr Wilkinson on the Central Coast. On Monday 20 October 2014, they were to be dropped off at their school so that Mr Walker could collect them later in the day and they would reside with him and his de facto partner (Marayam) for the rest of the week. April was taken to school, Toby was not. Ms Hutchison obtained the key to Mr Walker's house from April, who also provided the address. At that stage, Ms Hutchison was not welcome at the premises and, it seems, did not even know the address. Mr Wilkinson, having driven his de facto partner and her children from the Central Coast, then drove Ms Hutchison to Mr Walker's premises where she entered unlawfully and lay in wait for her ex-husband's return. There were a series of text messages, relevantly between Mr Walker and Ms Hutchison and between Ms Hutchison and Mr Wilkinson, establishing that Mr Wilkinson was waiting outside the premises while Ms Hutchison perpetrated a series of falsehoods in order to trick Mr Walker into returning home early. These tricks eventually worked and Mr Walker returned home. The evidence establishes that Mr Wilkinson was aware of the substance of the exchange of messages. When Mr Walker approached the townhouse, Mr Wilkinson texted Ms Hutchison to warn her of his arrival. "Mr Wilkinson was aware of her plan, and was playing the role of 'cockatoo' or lookout, warning her of cars approaching the premises and, in particular, telling her when Mr Walker arrived home." [4] 6. Exactly what went on in the half an hour thereafter is not completely clear. Mr Wilkinson gave a version of events but I was, and remain, unable to accept what he said. His evidence at the trial did not fit comfortably, or at all, with the timeline established objectively by telephone calls, text messages and CCTV footage. Ms Hutchison did not give evidence in the trial and the versions of events that she gave to psychiatrists were not admitted in Mr Wilkinson's proceedings. 7. I am satisfied that Mr Walker was attacked by Ms Hutchison very shortly after he entered the premises at 1.00pm. Most likely, she sprayed "Exit Mould" into his face in order to disable him. She may also have used an electrical prod or Taser for the same purpose. At some stage thereafter, Mr Wilkinson entered the premises. Mr Walker was brutally assaulted and suffered many injuries, in particular bad bruising to his face. His nose was broken and his ability to breathe was compromised. In the course of the assault he aspirated food into his lungs which further compromised his ability to breathe. Finally, Ms Hutchison applied a ligature without a great deal of force. A combination of these three acts capable of restricting Mr Walker's ability to breathe led to his death by asphyxia. 8. While Mr Wilkinson's role in the violence is not completely clear, I am satisfied beyond reasonable doubt that he played a greater role than he said in evidence. He claimed that he threw just one punch in response to Mr Walker striking out at him. Whatever the precise individual roles of the two offenders, they were acting together and each is criminally responsible for the actions of the other. 9. During the course of the assault, Toby was present upstairs. I am satisfied beyond reasonable doubt that he witnessed at least some of the assault. He gave specific evidence of seeing both his mother and Mr Wilkinson punching his father. While it may be that Mr Wilkinson was not aware that Toby was watching, he was certainly aware that Toby was present in the house. I accept the Prosecutor's submission that the fact that this brutal offence was committed in the presence of a young child is a matter which aggravates the offending to a substantial degree. The offending is also aggravated by the fact that it was committed in company and in the victim's own home, a place where he was entitled to feel safe. 10. At 1.25pm, Mr Wilkinson left the premises on foot and returned in his car a little over one minute later. He parked the car in the driveway next to the townhouse. In his evidence at the trial, Mr Wilkinson said that Mr Walker was still alive when he went to get the car. He said the purpose of getting the car was to take Mr Walker, Ms Hutchison and Toby to a police station where Toby's allegations of assault could be ventilated. I do not accept that version of events. I find that Mr Walker was either already dead or very seriously injured and that the purpose of obtaining the car was to put his body into the boot. There is no other sensible explanation for him bringing the car around at that time, and the fact is that within 13 minutes the body was in the boot of the car. 11. The offenders then panicked and did not know what to do. This panic supported my finding that neither offender went to the premises intending to kill or really seriously injure Mr Walker. Rather, Ms Hutchison intended to extract a recorded confession from Mr Walker by inflicting some violence on him. Contrary to some of his evidence and suggestions in submissions, I am satisfied beyond reasonable doubt that Mr Wilkinson was aware of Ms Hutchison's intention and was a willing and active participant in the attempt to extract a confession. Unlike Ms Hutchison, these were not his children and he did not suffer from the kind of compromised mental health that explained, but did not justify, Ms Hutchison's actions. Why Mr Wilkinson went along with this dangerous and bubble brained plan is a mystery. Part of the explanation may have been, as was suggested in the sentencing proceedings, that Ms Hutchison had manipulated him. His conduct may also have been borne out of a misguided sense of loyalty to her and out of something in the nature of love. There is evidence in the text message exchanges before the killing that suggests that Ms Hutchison may have been manipulative by threatening suicide when Mr Wilkinson made attempts to break up with her or when he encouraged her to give up drugs. 12. Another possible explanation for some of the behaviour may have been that both offenders had developed a fairly dangerous drug habit and each of them was using methylamphetamines in the period leading up to offence. If this is so, and the evidence is not entirely clear as to the nature and extent of their drug use, it is neither a mitigating nor aggravating feature of the offence. Neither counsel suggested that it was. 13. After the killing they drove to a friend's place in Minto where they attempted to gain assistance to cover up the crime. They took some drugs there and the occupants sent them away. They returned to St Marys where Ms Hutchison attempted to clean up the premises without very much success. By this time Mr Walker's body was in the boot of the car where it was hidden from the view of the children and from Maryam who had arrived at the premises concerned for his well-being. After April arrived home, the two children and the offenders drove Mr Wilkinson's car north to Wisemans Ferry where they met a friend who took the two children back to the Central Coast. Mr Wilkinson and Ms Hutchison then dumped Mr Walker's body by the side of a dirt road. I accept that Mr Wilkinson played an important role in covering up the crime and hiding Mr Walker's fate from Maryam. Even though he is not to be sentenced for the events that followed the killing, his conduct during those hours demonstrated a callous disregard for Mr Walker's dignity. 14. While there was some planning and pre-meditation in the offence, it was extremely poorly executed and it took the police something like 24 hours to place both perpetrators under arrest. 15. The offence is a serious example of manslaughter because of the brutality and senselessness of the killing and the aggravating features which I have identified. Mr Wilkinson's personal case and mitigating features 1. Mr Wilkinson has been in custody since 21 October 2014 and his sentence will be backdated to that date. 2. Ms Hutchison received a 25% discount from the otherwise appropriate sentence as a result of her early offer to plead guilty. That offer was made very early in the proceedings, prior to the committal for trial. It was rejected by the Director of Public Prosecutions. Mr Wilkinson also made an offer to plead guilty to manslaughter. That offer was made after the committal hearing but before the matter proceeded to trial. He made the offer to plead guilty on 2 November 2017. While the matter had by then been listed for trial, the trial could not proceed due to reasons outside of Mr Wilkinson's control. In the course of argument I suggested that he may be entitled to a discount of around 20%, a figure that the experienced Prosecutor did not really contest. I propose to reduce Mr Wilkinson's sentence by 20% in recognition of his offer to plead guilty to the offence of which he was ultimately convicted. 3. A psychologist's report was tendered on sentence and it showed that Mr Wilkinson does not suffer from any relevant psychiatric or psychological illness. The report set out in detail his family and life history and shows that he is a person who generally has been of good character, although he has some minor offences on his criminal record. He has no previous offences of violence and the uncontested evidence in the trial supported a finding that he was a person of non-violent disposition. His criminal history comprises of matters typically associated with people with drug problems. There are some drug offences and some offences of dishonesty as well as driving offences. He has never been sentenced to a term of imprisonment and the time he has spent in custody for this offence is his first experience of the New South Wales penal system. 4. Mr Wilkinson gave evidence on sentence. So did his father. From that evidence, I am satisfied that Mr Wilkinson, who is approaching 40 years of age, has been a hardworking and skilled tradesman for most of his adult life. He lost a good job as a fitter and machinist shortly before the present offence. It seems he was taking methylamphetamine in order to assist him in working very long hours but that his use of the drug got out of control, he became unreliable, and his employer terminated his contract. Even so, his work history is very impressive and his father gave evidence that he has an extremely strong work ethic and is skilled in his trade. 5. One notable piece of evidence came from case note reports maintained by the Department of Corrective Services. The author of a note on 23 October 2017 described Mr Wilkinson's role working in maintenance at the Long Bay Correctional Centre. He was described as "very positive courteous and polite" and "alway[s] willing to go the extra mile and help out where needed and the first to put his hand up". The writer found him "trustworthy, honest and one that takes ownership towards all that is asked of him". The corrective services officer expressed the opinion that in the ten years he had been working in maintenance he "can say without a doubt Wilkinson would be the best inmate maintenance worker I've ever came across. He described him as "very conscious about accountability to all items and tools that is given to him". I have read many inmate notes and narratives over many years and this is one of the most positive entries in such a document that I have seen. It bears out the evidence of Mr Wilkinson himself, and that of his father, concerning Mr Wilkinson's work ethic and value as a worker. 6. Based on all of this evidence, I am satisfied that Mr Wilkinson is generally a person of good character in spite of his relatively minor criminal history. I am satisfied he has good prospects of rehabilitation. These are mitigating features when considering the appropriate sentence. 7. I also accept that Mr Wilkinson's expressions of remorse made in evidence and also to his father and the psychologist are genuine. In spite of the fact that I rejected some parts of his evidence I accept that he has taken responsibility and acknowledged the damage done by his actions. His offer to plead guilty is some evidence of remorse and I accept that his evidence on this subject was truthful. This is a mitigating feature. [5] Impact on Mr Walker's family 1. In my judgment sentencing Ms Hutchison, I recounted some of the material received on sentence concerning the impact that this crime has had on the immediate family of Mr Walker. The reader should refer to that part of the judgment to understand the devastating impact this crime had on many innocent people. The same body of material was tendered on the sentencing hearing of Mr Wilkinson. However the family did not attend Mr Wilkinson's sentencing hearing and asked the Prosecutor to make it clear to me that they had prepared their victims impact statement specifically by reference to the sentencing proceedings of Ms Hutchison. Reading between the lines, it seems that the family holds Ms Hutchison largely responsible for the death of their loved one. 2. Even so, it must always be remembered that this case involved the taking of human life and that its impact is devastating. Two children have been left traumatised and without a father. Parents are grieving their son. Siblings, aunts and uncles are distraught and left to pick up the pieces. I set this out in more detail when sentencing Ms Hutchison. 3. Whatever be the attitude of the victim's family, Mr Wilkinson played a substantial role, even though it was a secondary role, in the events that led to Mr Walker's death. Like Ms Hutchison, it is appropriate to take into account the suffering of these secondary victims as an aspect of the harm done to the community. [6] I have explained in previous cases the way in which the law allows this matter to be taken into account while emphasising that no human life can be valued by the law more than any other. [7] The reality is that the law treats all human life as sacred and any offence that results in the taking of human life must be met with stern punishment. The other reality is that no sentence I impose will seem enough for those impacted by this crime and whose suffering is intense and ongoing. 4. While I acknowledge the suffering of the secondary victims, and have taken into account the harm done to them in the manner allowed by s 28(4), I reject the submission that the offence is aggravated by the fact that there was substantial harm to the victim. As I explained in sentencing Ms Hutchison, this is true in all homicide cases. Parity 1. A critical issue to consider is the question of parity or, more correctly in this case, proper proportionality between the sentence imposed on this offender and that imposed on Ms Hutchison. The Prosecutor very properly and fairly conceded that Mr Wilkinson would be left with a justifiable sense of grievance if his sentence was greater (or the same) as that imposed on Ms Hutchison. 2. There were some compelling personal circumstances in Ms Hutchison's case that do not arise in Mr Wilkinson's case. This includes the fact that she was a victim of childhood sexual assault and the chronic psychiatric sequelae of those events. Similarly, she received a higher discount because her offer to plead guilty was made earlier. Even allowing for those matters, concepts of equal justice and due proportionality require that Mr Wilkinson receive a sentence that is less than that of Ms Hutchison. Sentencing 1. I have considered the objectives of punishment and purposes of sentencing both at common law and in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Deterrence is a particularly important objective in a case such as this one. Mr Wilkinson must be adequately punished, made accountable and his actions must be clearly denounced. The dignity of the victim of this violence must be vindicated and the harm done to him and his family must be recognised. On the other hand, the community has a strong interest in promoting Mr Wilkinson's rehabilitation. 2. Having considered all of the relevant matters and the submissions of counsel who represented both sides, I am of the view that a starting point of 10 years is appropriate in Mr Wilkinson's case. That sentence will be reduced by 20% for his offer to plead guilty, resulting in a head sentence of 8 years. 3. The Prosecutor accepted that I should find special circumstances in order to ensure that the non-parole period imposed on Mr Wilkinson is less than that imposed on Ms Hutchison. There are also special circumstances in the fact that Mr Wilkinson has never been in gaol before and has made the most of his time in custody. While he may not need a high degree of supervision, he will benefit, in re-entering the community, by a longer period on parole. I accept the prosecution concession that special circumstances are established and I will reduce the non-parole period accordingly. In setting both components of the sentence I have borne in mind the sentence imposed on Ms Hutchison. The non-parole period will be 4 years and 9 months. 4. Accordingly Mr Wilkinson I sentence you as follows: 1. For the manslaughter of Brett Walker you are sentenced to a term of imprisonment of 8 years with a non-parole period of 4 years and 9 months. The non-parole period will commence on 21 October 2014 and expire on 20 July 2019. The balance of term of 3 years and 3 months will commence on 21 July 2019 expire on 20 October 2022. 2. I am required to advise you that the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) apply to the offence for which you have been sentenced. Pursuant to s 25C of that Act, I direct your lawyers to advise you of the possible application of the Act. ********** Endnotes 1. R v Hutchison & Wilkinson [2018] NSWSC 1759 ("the verdict judgment"). 2. Crimes Act 1900 (NSW), s 24. 3. R v Raquel Hutchison [2019] NSWSC 25. While the maximum penalty was not specifically referred to in the judgment, it was at the forefront of the decision to impose a sentence with a starting point of 12 years imprisonment for an offender with no relevant criminal history. 4. R v Hutchison & Wilkinson [2018] NSWSC 1759 at [169]. 5. Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i). 6. Crimes (Sentencing Procedure) Act 1999 (NSW), s 28(4). 7. See R v Hines (No 3) [2014] NSWSC 1273 at [77]-[85]; R v Do (No 4) [2015] NSWSC 512 (Davies J); R v Halloun [2014] NSWSC 1705 (McCallum J); R v Sumpton (No. 4) [2015] NSWSC 684 at [36]-[44]; Sumpton v R [2016] NSWCCA 162. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2019