DPP v Hicks

3 You were subsequently arrested on 19 June, in respect of a series of burglaries, which had been committed in the Long Gully area on the night of 14 to 15 June. In the course of your interview with the police, you admitted to performing some of those burglaries, but you denied committing the burglary at 199 Eaglehawk Road. Subsequently, you were charged with the murder of Zayden, and the aggravated burglary committed at those premises. At your trial, it was common ground that the person, who committed the burglary at 199 Eaglehawk Road, was the person who had murdered Zayden. By its verdicts, the jury was satisfied, beyond reasonable doubt, that you were the person who burgled 199 Eaglehawk Road, and who murdered Zayden.

4 For the purposes of sentencing you, it is, first, necessary for me to make some findings of fact in relation to the circumstances of the offences for which you have been convicted. The findings, which I make, are consistent with the verdicts of the jury, and the evidence adduced at your trial.

5 Ordinarily, in passing sentence, it is not the role of the judge to comment on the verdicts of the jury. However, after the delivery of the verdicts in this case, some wholly intemperate and inappropriate remarks were made, concerning the jury and the verdicts, by one of your friends or family, which, regrettably, some less responsible sections of the live media saw fit to publish. Accordingly, I am constrained to observe that, on any rational, objective view of the evidence, the prosecution case against you was, to say the least, very powerful. In my view, the jury was fully justified in reaching the verdicts which it pronounced.

6 As I stated, at the time of his death, Zayden was ten and one half months old. He was living at 199 Eaglehawk Road with his mother, Casey Veal, and her then partner, Mathew Tisell, and with Zayden's older brother, Xavier, who was then three years of age. Casey Veal was separated from James Whitting, who is the father of Xavier and Zayden. However, she shared the parenting of the two children with him.

7 The bedrooms of both Xavier and Zayden were at the front of the house. The bedroom, which Casey Veal shared with Mathew Tisell, was at the rear of the premises. In the early evening of Thursday, 14 June, Casey put Zayden to bed early, because he had been unwell. She used a baby monitor in Zayden's room, and on the night in question, she had connected it to the power point in the room. Mathew Tisell arrived home late that evening. Zayden woke up while Casey and Mathew were attending to some household duties. She gave him a bottle, settled him with his blankets, made sure the baby monitor was on, and shut the door. That was the last time that she saw, or attended to, Zayden while he was alive. She and Mathew then went to bed at about 2.00 am.

8 At that time, you were living in a house at 2A Green Street, Long Gully, with your then girlfriend, Martina Lawn. Your stepbrother, Joshua Hicks, his girlfriend and another person were also living there. During the afternoon of 14 June, you had been taking marijuana and methamphetamine (otherwise known as "shard" or "Ice"). Late in the evening, at about 11.00 pm, you left the house intending to carry out burglaries in the Long Gully area. You were carrying a shoulder bag. You also had a baton with you. It consisted of a large number of copper wires which were tightly wrapped by multiple layers of insulating tape. The implement, which was tendered as an exhibit in the case, was very heavy and, in the wrong hands, it was potentially a lethal weapon.

9 Having set out from your home, you entered eleven different addresses in the Long Gully area, with the intention of committing thefts or burglaries there. At one of the premises, in Duncan Street, you were disturbed by one of the occupants, who chased you as you fled. Undeterred, you continued on your spree of burglaries. At some of the premises, you entered sheds in the back yard, and either took items from them, or rifled through their contents. At other premises, you entered unlocked vehicles, and rifled through their glove boxes, looking for valuables. You attempted to enter some of the houses, but you were deterred from doing so when you found that the back doors to those premises were locked. At one house, in Wilson Street, you found that a rear window was unlocked. You entered the house through that window, and stole a number of items there.

10 You then made your way to Jackson Street, Long Gully. There, at 15 Jackson Street, you entered two vehicles, which were in the front yard, and rifled through the glove box of each of them. You stole a set top box from the console of one of those vehicles.

11 Having completed that burglary, you then entered the property at 199 Eaglehawk Road, which was directly opposite the house at 15 Jackson Street. It is probable that you entered through the rear, by climbing over the fence. You rifled through the glove boxes of two vehicles, which were parked in the yard. You then entered the house through the unlocked rear sliding door. Having done so, you stole Mathew Tisell's wallet, which was on the kitchen bench. It contained almost $2,000, which was the bond money set aside by Mathew and Casey for the lease of other premises to which they were about to move. You also stole a set of scales, and a pair of new sunglasses belonging to Mathew Tisell. In addition, you took possession of Casey Veal's wallet, but, having found that it was empty, you subsequently left it outside before you departed the premises.

12 Having stolen those items, you made your way to the front of the house. You opened the doors to Xavier's bedroom, and to the spare bedroom. You then opened the door to Zayden's bedroom, and entered it. You disconnected the baby monitor. What you did next is reasonably clear. However, what is unclear is why you did it.

13 Having entered Zayden's room, you went over to his cot. There you repeatedly, and with considerable violence, brutally struck multiple blows to his face, head and upper body with the baton which you were carrying, thereby killing him. You then placed Zayden at the end of his cot, pulled one of his blankets over part of his face, and departed from the premises.

14 You then walked further up the street, and stole a fire extinguisher from a tractor at 42 Jackson Street. You made your way to 73 Jackson Street, where a friend of yours, Alan Smith, resided. You persuaded him to drive you home to 2A Green Street. It is possible to fix the time of your arrival at home from a record of a telephone call, which you made to Mr Smith shortly after he had left you there, requesting him to bring back the bag which you had left in his car. Based on that evidence, I am satisfied that you arrived home at 2A Green Street at about 4.00 am. Thus, I am satisfied that you murdered Zayden between approximately 2.30 am and 3.30 am.

15 On the next morning, at about 6.30 am, Xavier alerted Casey Veal that the doors to the house were open. Casey checked Zayden's bedroom, and he appeared to be asleep. She did not want to wake him, so she did not enter his room. She then checked other parts of the premises. She noted that the two wallets were missing, the doors to the cars parked outside were open, and their glove boxes had been rifled through. She decided to telephone the police. Before doing so, she went to wake up Zayden, so that he would not be frightened by the noise of the police arriving. When she entered Zayden's room, she noted that the baby monitor had been disconnected. She also noted that his blankets had been disturbed, and he was not lying in the position he normally occupied in the cot. A blanket was unusually placed over part of his face. She touched Zayden, and he did not respond. When she pulled the blanket back, she saw that there was blood everywhere, and his face was bruised and swollen. She picked up her baby, and screamed to Mathew Tisell to call an ambulance.

16 While waiting for the ambulance and the police, Mathew attempted to revive Zayden. The ambulance paramedics arrived, and tried desperately to bring Zayden back to life. He was rushed to hospital, where he was pronounced deceased at 8.05 am.

17 The account of the attempts to save Zayden's life is set out in some detail in the depositions. Only a bare outline of them was given to the jury, for obvious reasons. The full account is harrowing. I can only imagine the dreadful trauma and heartbreak involved, at that time, for Casey Veal, for Mathew Tisell, and for those who loved Zayden. It is appropriate that I acknowledge their valiant attempts to save Zayden, and the dedicated efforts of the ambulance paramedics and the staff of the Bendigo Hospital Emergency Department, who attended him.

18 Subsequently, an autopsy was conducted on the body of Zayden. The pathologist, Dr Lee, noted that there were a minimum of 25 blunt impact injuries to his face, and a minimum of eight blunt impact injuries to his scalp. The photograph of those injuries, tendered at your trial, graphically depicts the savage brutality of the attack which you inflicted on Zayden.

19 As a result of the blows to the scalp, Zayden suffered two fractures to the left hand side of his skull. Dr Lee considered that those fractures were probably caused by a blow, or blows, between the two fractures, the force of which was so severe as to cause the skull to fracture on either side of them. In addition, there was a depressed fracture to the right hand side of the skull. The complex pattern of the fracture meant that it was likely to have resulted from more than one blow to the area, inflicted with a severe amount of force. In addition, the blows to the skull, which caused the fractures I have just mentioned, were of such ferocity that the force of them was transmitted to the base of the skull, causing fractures to that area. There were also haemorrhages on the surface of the brain, and within the brain itself. In addition, the pathologist noted a complete fracture of the right collarbone, which would have been caused by the application of severe force, and a fracture of the right rib. Unsurprisingly, the pathologist concluded that the cause of death was the blunt impacts to Zayden's head, resulting in skull fractures and injury to the brain.

20 The injuries, noted by the pathologist, make it plain that you perpetrated an extraordinarily violent bashing on Zayden, involving multiple blows with the baton to the head, the face and other parts of the body. The pathologist noted some areas of circular bruising to Zayden's face, which contained a pattern that was consistent with the application of force by the end of the baton, from which the copper wires protruded. Thus, it is clear that you bashed Zayden, not only with the length of the baton, but also with the end of it. Based on the evidence of the nature, extent and severity of Zayden's injuries, the only reasonable inference is that, when you struck the fatal blows which caused Zayden's death, you specifically intended to kill him.

21 Apparently entirely unaffected by the horrific crime that you had just committed, you left the premises at 199 Eaglehawk Road, taking with you Mathew Tisell's wallet, his sunglasses, and the scales. As I stated, you then made your way up the street, stopping at 42 Jackson Street to steal a fire extinguisher. You then made your way to the home of your friend, Alan Smith. He agreed to your request to drive you home. At your direction, he stopped, en route, in Wilson Street, where you collected the items that you had stolen from a house in that street.

22 When you arrived home, you spoke with your stepbrother Joshua, and you consumed some drugs with him. You then went to sleep, apparently entirely untroubled by the dreadful crime you had committed. On the next day, after you woke up, you showed the items you had stolen to Joshua, and the other occupants of the premises. You placed the set top box (stolen from 15 Jackson Street) in the lounge room cabinet. Unbeknown to you, it had Zayden's DNA and your DNA on it. You left the baton (also with Zayden's DNA on it) in your bedroom, under clothes and other belongings strewn on the floor. You kept and, subsequently, wore the sunglasses, that you had stolen from Mathew Tisell.

23 It had been previously arranged that Martina Lawn and you would travel to Martina's sister's house in Gisborne on Saturday 16 June, in order to attend a birthday party that was to take place there. However, on Friday 15 June, you persuaded Martina to leave Bendigo for Gisborne one day early. I am satisfied that you did so in order to avoid detection and apprehension for the murder you had committed on the previous evening. Having arrived in Gisborne that evening, you used a computer at the premises, at which you were staying, to check the internet for news relating to the death of a baby in Long Gully. On the Sunday, while you were there, you cut off the legs of the tracksuit pants, that you had worn on the evening of 14 to 15 June. You disposed of the legs of the tracksuit. I am satisfied that you did that because it had occurred to you that they might have blood stains or other matter on them, which might link you to the murder of Zayden.

24 On the next day, Monday, 18 June, Martina Lawn told you that the police had contacted her mother, wishing to speak to Martina. You immediately fled, and hid at the Gisborne Oval, not even taking your wallet with you. I am satisfied that you took flight, because you were concerned that, if you stayed there, you might be arrested for the brutal murder that you had committed. On the following day, 19 June, you contacted your father. He collected you at the oval, and drove you back towards Bendigo. En route, you were arrested by the police, and taken into custody.

25 It is clear that, before your arrest, you had already cooked up a false story to protect yourself. Almost immediately after you were arrested, you falsely claimed that on the evening of 14 to 15 June, you had been out committing burglaries with a former acquaintance of yours, Aiden Kirby.

26 The police then conducted a lengthy recorded interview with you. At an early stage of that interview, you sought to implicate Aiden Kirby in the murder of Zayden. In doing so, you casually, but deliberately, mentioned matters, which would cause the police to suspect that it was Aiden Kirby who had murdered Zayden. In particular, you mentioned that Kirby was carrying a weapon with him on the evening (which you drew in a sketch); you mentioned that Aiden Kirby was on drugs, and acting in an aggressive manner; you told the police that, after you and Aiden committed the burglary at 15 Jackson Street, you parted from him, and he headed back towards 199 Eaglehawk Road; and you told the police that on the next day, when you spoke to Aiden, he told you that he was leaving Bendigo for Adelaide, because things were getting too "hot" for him.

27 What you told the police in that interview about Aiden Kirby was completely untrue, but it was sufficiently convincing to lead the police to suspect that he might have been the person who had murdered Zayden. As a result, nine police members attended at the house of Aiden Kirby's mother on that night. Aiden Kirby had not been living there for some time. Mrs Kirby contacted her son, and he immediately, and voluntarily, attended at the police station. There he was arrested, and interviewed at length. When his account was checked, he was found to have an iron clad alibi, which exculpated him from any involvement in the crimes you had committed.

28 Ultimately, shortly before your trial, you signed a document, admitting that you had not been out in company with Aiden Kirby on the night in question. At your trial, Aiden Kirby gave evidence, in which he stated that he had been at a cousin's house that night, and that he had then gone back to his sister's house. His account, which was corroborated by independent evidence, was not challenged in cross-examination.

29 At the trial, your counsel, on your behalf, conceded that what you had said to the police about Aiden Kirby's involvement were complete lies. You had fabricated the account to implicate Aiden Kirby, in order to save your own skin.

30 Having failed in your attempt to blame Aiden Kirby, you then shifted your strategy. At the trial, your counsel, on your behalf, raised the possibility that, on the evening in question, you were out committing burglaries with your twin brother, Ashley Hicks. At your trial, Ashley gave evidence, and three other witnesses also gave evidence, as to his whereabouts on the evening. In brief, the evidence was that Ashley, on that night, was at your father's house in McColl Street, Long Gully, and that he did not leave that house that evening. By their verdicts, the jury was satisfied, beyond reasonable doubt, that Ashley Hicks was not involved in the burglary at 199 Eaglehawk Road or the murder of Zayden there.

31 You have been convicted of the most serious crime in our legal system, the murder of another human being. The maximum sentence for that crime is life imprisonment. Your offending places this case in the worst category of offences of murder which come before the courts. You have committed an appallingly violent and callous murder of an innocent, helpless ten-month-old infant. All human life is sacrosanct, and the law does not differentiate between the life of one human being and another. However, the life of a baby is particularly special and precious. At the time of his death, Zayden was on the threshold of childhood, with the future before him. He was in the safety of his own home, secure in his own cot. He was, as any infant of that age would be, utterly harmless, defenceless and helpless. Any human being, with even a shred of decency and humanity, could only feel compassion, tenderness and protectiveness towards an infant in those circumstances. By contrast, you inflicted a brutal bashing, with a lethal instrument, on that baby. You crushed his skull, and savagely beat him with at least 30 blows. It is almost unthinkable that any human being could have carried out the sickening crime that you have committed. What you did was totally and utterly evil.

32 The use by you of the baton, to murder Zayden, was a further seriously aggravating circumstance of your crime. The baton had been kept at the premises at 2A Green Street. It was approximately 37 centimetres in length, it had a hard, rigid surface, and was heavy to hold. It was a lethal weapon. When you set out from 2A Green Street, you made a deliberate decision to take the baton with you. You did not use it to attempt to break into any house, building, shed or vehicle, when you burgled, or attempted to burgle, the premises, which I have mentioned. The only reasonable inference, available on the facts, is that you took the baton with you to use for the purpose of threatening violence, or engaging in violence, with it.

33 In that connection, it is significant that when you were confronted by the adult occupier of the premises at Duncan Street, Mr Vucinic, you fled, notwithstanding that he chased you, and that, during that pursuit, you lost your shoes. While it is fortunate that you did not seek to confront Mr Vucinic, on that occasion, the fact that you did not do so only serves to highlight the utter needlessness and cowardice of your lethal attack on Zayden with the baton.

34 The murder, by you of Zayden, was unspeakably cruel and callous. So, too, was your behaviour immediately after it. You have displayed no remorse at all for what you have done. Indeed, you were so unmoved by your crime, that you walked up the road, and, no doubt in a spirit of exuberance at having successfully stolen a large sum of money, you let off the fire extinguisher that you had stolen. You then made your way to Alan Smith's place, where you replenished yourself with a sausage roll. On your way home, you made sure that you recovered the items, which you had stolen from Wilson Street. When you got home to 2A Green Street, you gloated over your bounty, flashing around some of the money that you had stolen. In the following days, you wore Mathew Tisell's sunglasses. For all you knew, they belonged to the mother or father of the baby who you had just murdered.

35 All the behaviour, which you indulged in, until your arrest, and during your police interview, was entirely directed to saving yourself, so much so that you even stooped to casting the blame for your appalling crime onto an innocent man. I have no doubt that you thought that Aiden Kirby would be a soft target onto which you could transfer your guilt. As I stated, the police were clearly influenced by what you had told them about Kirby. Accordingly, an innocent man was arrested, interviewed at length, and investigated in respect of the dreadful crime you had committed. Your conduct, in seeking to implicate Aiden Kirby in your crime, further aggravates your wrongdoing in this case.

36 Throughout the trial, I took the opportunity to observe you in the dock. At no stage of the trial could I detect from you any sign of remorse. Nor was there even the slightest indication by you of any pity or sympathy for the baby, whose life you had taken, or for his family, whose lives you have shattered. Rather, you seemed totally oblivious and impervious to such human feelings. The evidence of Casey Veal, of the paramedic, and of the pathologist were each heart rending. During those parts of the case, I detected no sign from you that you had any sympathy for Zayden or for his family. By contrast, at other stages during the trial, you became quite animated, and indeed your behaviour was such that it was necessary for me to bring it to the attention of your counsel. I am satisfied, beyond reasonable doubt, that you feel no remorse for your wrongdoing, and that you have not suffered even the slightest pang of conscience in respect of it.

37 As I stated, the evidence does not reveal, with any clarity, why you murdered Zayden. At your trial, the prosecution proffered the possibility that, by entering Zayden's room, you disturbed him, and you bashed him in order to prevent him waking the other occupants of the house. Certainly, that explanation is consistent with the fact that Zayden was not sleeping well at the time because he had a cold, and also with the fact that you disconnected the baby monitor. If that explanation constituted your motive for killing Zayden, then you murdered an innocent child so that you could escape from the premises with the valuable items you had stolen from it. On the other hand, if that was not your motive, then your murder of Zayden was simply an act of unmitigated evil committed by you for the sheer sake of it. On either view, there are absolutely no extenuating circumstances attaching to your appalling crime.

38 In this respect, as your counsel, Mr Hallowes, correctly acknowledged, it is not a mitigating circumstance that you might have been affected by the drugs, and, in particular, methylamphetamine (Ice), that you had consumed before commencing the spate of burglaries you committed on that night. In any event, there is no evidence that the consumption by you of that substance caused you to act in an irrational or erratic manner, or that it significantly affected your judgment, on that night. To the contrary, you were systematic in carrying out the eleven burglaries, which I have already described, and you adhered to a consistent methodology in doing so. You were able to make good your escape, when Mr Vucinic intercepted you, while you were attempting to burgle the premises at Duncan Street. After you murdered Zayden, you enlisted the aid of Mr Smith, your friend, to drive you home. In its own way, that was a sensible and rational decision, in light of the crime you had just committed. Mr Smith did not describe anything untoward in your manner or your mood at that time. On the way home, you stopped to collect the items, that you had already stolen in Wilson Street, which was another rational decision by you.

39 You have a large number of criminal convictions, dating back to 2007 when you were 14 years of age. In particular, you have one previous conviction for armed robbery, one previous conviction for aggravated burglary, one previous conviction for reckless conduct endangering life, and four previous convictions for burglary. On a number of occasions, you have received sentences, which were designed to assist in your rehabilitation. Those sentences included releasing you on a good behaviour bond, on probation, subject to a youth supervision order and subject to a community corrections order. You have breached a good behaviour bond, two previous probation orders and two previous youth supervision orders. Your offending in this case constituted a serious breach by you of a community corrections order, which I shall refer to shortly.

40 Of particular concern is that your criminal history reveals an increasing level of violence associated with your previous offending. In November 2009, you were sentenced for offences of aggravated burglary and unlawful assault, arising out of an incident in May 2009. In that incident, you aided and abetted two associates, who entered the premises of a married woman, and terrorised her, with a view to exacting revenge on her husband or her son in respect of an assault, which you alleged had been committed upon you.

41 In April 2010, with two other associates, you stole a motor vehicle. While the vehicle was driven by another associate, it crashed into a service station in Long Gully. As a result of that incident, in May 2010, you pleaded guilty to a number of offences, including reckless conduct endangering life. You were sentenced to be detained in a Youth Justice Centre for a period of four months.

42 Of greater concern is your most recent conviction before the offending in this case. In April 2011, you carried out an armed robbery on a service station in Golden Square. The robbery was pre-planned. You recruited an associate to drive you to and from the place of the robbery. You were armed with, and you brandished, a large kitchen knife, while demanding that the staff member of the service station hand over money from the till. You grabbed a wallet, which was on the counter, and fled the premises.

43 You were arrested for that armed robbery on 27 May 2011, and you were taken into custody. Later that year, you were released on bail. On 13 April 2012, you pleaded guilty before the Melbourne County Court to the offence of armed robbery. You were sentenced to be subject to a community corrections order for 12 months, during which you were required to undergo treatment and assessment in respect of a range of issues, including drug and alcohol abuse. After attending the Bendigo Community Correctional Service on one occasion, you thereafter failed to attend a number of appointments arranged for you by that service.

44 Thus, at the time of your offending in this case, you were subject to a community corrections order, which had been imposed on you only three months earlier, in respect of a serious crime of violence committed by you. You had failed to comply with the terms of that order, and you had given no justification for doing so.

45 As I have already stated, the primary victim of your offending in this case was a 10 and one half month old infant, Zayden VealWhitting. The life of each child is precious and unique. The photographs of Zayden, which are attached to the victim impact statements, and the statements themselves, are a poignant reminder of that simple truth.

46 There are also a number of other victims of your crime, who have suffered, and continue to suffer, grievously. I have read the victim impact statements of Zayden's mother, his father, his four grandparents, his stepmother, his four aunts and his uncle. Each of those statements describe, in the most moving terms, the depth of grief and suffering caused to them as a result of your appalling crime. The lives of each of those persons have been deeply, and forever, scarred by the tragedy you have inflicted upon them.

47 In addition, there is another victim of your crime, namely, Zayden's older brother, Xavier. Tragically, Xavier was an eye witness to the circumstances in which his mother, and Mathew Tisell, found Zayden's deceased body, and desperately tried to revive him. Like all young children, Xavier was much attached to his younger brother. He has struggled to cope with the trauma of that terrible day, and he cannot comprehend the loss of his little brother.

48 The English language is rich in its vocabulary. However, on this occasion, it is entirely inadequate to describe, properly, the extent of the tragedy, and the grief and anguish, wrought by the crime for which I must sentence you.

49 Although some of the victim impact statements were read at the plea hearing, it is appropriate that I refer to, and repeat, in these sentencing remarks, two short extracts from the statement by Casey Veal, Zayden's mother, and an extract from the statement of James Whitting, his father.

"I miss Zayden each second of each day. As a mother ... I cannot begin to describe my daily pain within my loss. But also including his brother's loss. Xavier's smile and lack of sparkle in his eyes changed that day. He will never be a normal kid. He is plagued by his loss and lack of understanding why. Which pierces my soul. I cannot answer or make him feel better. Words cannot describe the pain I feel for both my sons."

"I lost everything I'd ever known. I lost being mummy. I lost all future plans I had dreamed for my boys. I lost his right to grow up, to celebrate even one birthday. Zayden was never able to even finish accomplishing being able to walk ... I am serving a life sentence I will never be free of against my own will ... All I have is memories and even most of them are tainted by this crime and the trauma that has come from this. ... This crime has destroyed my life; I will never be the same again."

52 In his statement, James Whitting says the following:

"I am very proud to say I am the father of Zayden VealWhitting. This statement have by far been the most difficult and painful, that myself and my family have ever had to find the strength to endure. The tragic and needless loss of my son Zayden devastated us all, and still does to this very day. I don't even know where to begin to express the pain I hold in my heart. ... The feeling of losing my son in this brutal way not many families have had to endure this but walking down an aisle carrying your son in his coffin should not of been. That was the most destroying time of my life. No-one should have to do that."

53 I have referred to the victim impact statements in a little detail, because they are a salutary reminder of the extent and depth of the anguish and suffering, which have been, and continue to be, the inevitable consequence of the offence, which you committed. While I am mindful that you must be sentenced based on a rational analysis of the facts of the case, and the application of the relevant sentencing principles, it is important not to lose sight of the enormity of the crime which you committed, and the indescribable grief and pain caused to so many, as the direct consequence of that crime.

54 I turn, then, to your personal circumstances. They are set out, in some detail, in a number of reports, and in a helpful letter by your mother, which were tendered on the plea, and which I have read.

55 You were born on 16 December 1992, and are now 21 years of age. Your parents' marriage was punctuated by conflict and acrimony, and they separated when you were eight years of age. Both of your parents subsequently re-partnered, and you have a number of half siblings and step siblings.

56 At an early age, you had some behavioural difficulties. The separation of your parents was traumatic for you, and it served to exacerbate those problems. Initially, you stayed with your father. However, after a short time, your mother removed Ashley and you from your father's care. After bitter Family Court proceedings between your parents, Ashley went to live with your father, and you stayed with your mother. By that time she had a new partner. From an early stage, you have harboured great hatred towards your step-father, who, you allege, subjected you to abuse and mistreatment. At the age of 14 years, you ran away from your mother's home to live with your father. However, your father was unable to adequately control both Ashley and yourself. As a result, you were placed with foster parents and also in St Luke's Residential Unit for some time. At that stage, you were a client of the Adolescent Protection Unit of the Department of Human Services.

57 As I stated, from an early age, you had behavioural problems. A medical practitioner diagnosed that you suffered from Attentional Deficit Hyperactivity Disorder and also Oppositional Defiant Disorder, which is a childhood behavioural problem, characterised by constant disobedience and hostility. From your early teenage years, you came under the care of the Bendigo Child and Adolescent Mental Health Service, particularly in respect of a number of attempts at selfharm and suicide ideation. On two occasions, you were an inpatient of the Banksia Mental Health Institute as a result of your selfharming behaviour.

58 During the same period, you commenced to use alcohol and marijuana regularly. You developed a significant addiction to both substances. In due course, you also commenced to use other illicit drugs, including heroin, ecstasy and amphetamines. In 2006, you became a client of the Youth Substance Abuse Service. However, you only attended that service intermittently, and your involvement with that service did little, it would seem, to stem your continued abuse of illicit drugs. From approximately 2011, you used methylamphetamine on a regular basis.

59 You have been subjected to three separate episodes of sexual abuse. When you were 11 years of age, you were sexually abused by a female adult friend of your mother. During your early teenage years, you were the victim of further sexual abuse by a group of male adults, who preyed on you, and other adolescents, by supplying you with drugs and alcohol. Ultimately, you reported the matter to the police, and the offenders were convicted.

60 In about July 2011, while you were on remand in the Metropolitan Remand Centre in respect of the armed robbery offence committed by you, you were violently raped by a fellow prisoner. A psychologist, who examined you at the time, noted that you were coping poorly with the effects of that assault on you, and that you were suffering from some symptoms of post-traumatic stress.

61 Your formal education was significantly disrupted and disjointed. You attended six different primary schools, because you were constantly changing your place of residence. You repeated Year 7 at Flora Hill Secondary School, and then you were asked to leave because of your behaviour. From there you commenced Year 8 at Golden Square High School, but you did not complete that year. Subsequently, you gained some further education at a TAFE college, and you attained the equivalent of Year 10. Notwithstanding your poor progress at school, a psychologist, who recently examined you, has assessed that you are of average intelligence.

62 After leaving school, you engaged in only a small amount of irregular employment. In 2009, you undertook sixteen weeks of apprenticeship training in a painting and decorating course. You have also performed a small amount of work in the hospitality industry as an unskilled labourer. However, your work history has been very limited and patchy, at best.

63 From your early years, and throughout your teenage years, you have had the attention of a number of different divisions of the Department of Human Services. However, your engagement with those services has been inconsistent and intermittent. As I have already noted, when outlining your previous convictions, the courts have made a number of dispositions in respect of you, directed to your rehabilitation, including releasing you on a bond, on probation, and subject to a youth supervision order. Those dispositions were subject to conditions that you attend counselling and other services. On some of those occasions, you complied partially with those conditions, but, it would seem, on most occasions, you were unable to comply with those conditions for more than a short period of time. As I have noted, you failed to adhere to the terms of the Community Corrections Order, on which you had been released in April 2012.

64 Notwithstanding that, at an early age, you were diagnosed to have behavioural disorders, and despite the dysfunctional circumstances in which you have lived your life, it appears that, at the time at which you committed the offences in this case, you were not, and, at the present time, you are not, suffering from any psychological or psychiatric illness or disorder.

65 Dr Glowinski, a consultant psychiatrist at the Victorian Institute of Forensic Mental Health, assessed you in February 2012, in preparation for the plea which was to be made on your behalf in respect of the armed robbery offence committed by you. He noted that you were then on a number of prescribed medications, including mood stabilising medication, anti-psychotic medication, and anti-depressant medication. He noted that you had previously been diagnosed with attention deficit hyperactivity disorder, and also with depression and bipolar disorder. However, Dr Glowinski did not make any formal diagnosis, other than expressing the view that your substance abuse was the most relevant risk factor to your offending behaviour.

66 You were examined, for the purpose of your plea in this case, by Mr Patrick Newton, a forensic and clinical psychologist, on 1 May 2014. Mr Newton took a detailed history from you, and he provided a comprehensive report in respect of his conclusions. He concluded that your mental state did not evidence any indication of an active psychological disorder. He formed the view that you are not currently suffering from the active effects of any anxiety related disorder, mood disorder or adjustment disorder. He considered that the medication and treatment, which you are currently receiving, is effective to control your symptoms. Mr Newton noted that your self-esteem is extremely poor, as a consequence of your chaotic family life, the abuse to which you have been subjected, and your involvement in a drug using subculture from your late childhood, through adolescence, and into adulthood. Mr Newton concluded that, by the time you were an adolescent, prominent anti-social features were established as a part of your personality, and they have become more intense as your adult years have commenced. He considered that they are sufficiently serious to warrant a diagnosis of "Anti-social Personality Disorder with borderline features".

67 Based on those reports, your counsel, Mr Hallowes, correctly accepted that your case does not come within any of the principles, which were summarised by the Court of Appeal in R v Verdins.[1]

68 Nevertheless, as Mr Hallowes correctly pointed out, the matters, to which I have referred, are relevant in determining your sentence. The brief summary of your personal history demonstrates that, from an early age, you suffered from behavioural disorders. Those problems were compounded by your chaotic and dysfunctional family life, the instability in your home life, the sexual abuse to which you were subjected, and your long standing abuse of alcohol and drugs. I accept that all those matters played an important role in your previous offending. That is not to excuse your previous offences. However, your personality is very much a product of the factors, to which I have referred. As such, those factors played an important role in your involvement in the lifestyle in which you indulged, when you committed the offences for which you have been previously convicted, and the offences you committed in this case.

69 In his report, Mr Newton also addressed the question of your prospects for rehabilitation. He considered that you would benefit from continued counselling and psychotherapy, to assist you to address the impacts of the abuse you have suffered and your personality issues. He also recommended that you participate in educational and vocational training. He considered that your prospects for rehabilitation are not positive, even with the best treatment available to you. Without the provision of intensive assistance, he considers that your prognosis for recovery would be poor. If your problems are left untreated, they are likely to become more entrenched and destructive with the passage of time.

70 In the circumstances, regrettably, I am satisfied that your prospects for rehabilitation are, at best, poor. I base that conclusion not only on Mr Newton's report. You have a large number of previous convictions, and you have, repeatedly, failed to avail yourself of the opportunities, which have been provided to you, to rehabilitate yourself. The very nature of the crime in this case, and, in particular, the senseless violence in which you indulged, together with your lack of insight and remorse, add powerful weight to the views expressed by Mr Newton.

71 Mr Newton's report is relevant to the question of the need to protect the community from you. The circumstances of the offence in this case, of themselves, demonstrate that you are a danger to the community. Any person, who is capable of perpetrating the appalling crime which you committed, is, clearly, a grave danger to the community, and especially to the defenceless and vulnerable members of it. Those concerns are magnified by your criminal record, and, in particular, the last three previous convictions, to which I have already referred. In this context, it is relevant that Mr Newton has expressed the view that you have an anti-social personality disorder with borderline features. In addition, as I have already stated, you have not displayed any remorse. There is no evidence that you have come to grips, at all, with the horrific nature of the crime that you have committed. All those factors, taken in combination, persuade me that there is a real need to protect the community from you, at least until you have had the opportunity to engage in serious long term treatment and counselling, which address the issues that are referred to in Mr Newton's report.

72 The principles, which apply to determining your sentence, are well established. It is necessary that the sentence, which I impose upon you, be such as to adequately express the condemnation by this Court, and by the community, of your crime, and to vindicate the sanctity of human life, which is the most precious value in our society. In this case, that purpose is significant. All human life is sacrosanct. But the community places special value on the lives of infants, and on the lives of the young and the vulnerable. It is necessary, in a case such as this, which involves the vicious murder of an innocent baby, that the sentence imposed on you be sufficient to uphold that value, and to express the Court's, and the community's, abhorrence of your crime.

73 Connected with that consideration, the sentence, which I am to impose upon you, must be of sufficient severity to serve as a general deterrent to others, by constituting a clear message to any other person, who might be minded to harm the lives or wellbeing of innocent children, that such conduct will be met with the most severe of sentences, in which mercy plays no part. It is only in that way that this Court, and the community, can do its best to protect the lives of its young and vulnerable members.

74 In addition, it is important that the sentence, which I impose on you, is sufficient to ensure that you yourself are personally deterred from further wrongdoing, and to instil into you some understanding of, and insight into, the terrible nature of the crime which you have committed. Finally, as I have already stated, it is important that the sentence be of sufficient duration to provide protection to the most vulnerable members of the community from you, at least until you are properly considered safe to return to the community.

75 Based on those considerations, Ms M Williams QC, who appeared with Mr G Hayward on behalf of the prosecution, submitted that I should impose upon you a sentence of life imprisonment. She accepted that, in your case, I should fix a minimum nonparole period. In that respect, Ms Williams drew my attention to a number of cases, to which I shall shortly refer, including the sentences of other persons found guilty of the murder of young children.

76 In response, Mr D Hallowes, who appeared on behalf of you, in the course of a thorough and persuasive plea, submitted that, in all the circumstances of the case, a sentence of life imprisonment is not the only sentencing option available. He submitted that I should therefore consider imposing, instead, a head sentence of a number of years which, he realistically conceded, would be of substantial duration.

77 In the course of sentencing submissions, a large number of sentences, in previous cases, were put before me. They include the sentences in Acar,[2] Farquharson,[3] Freeman,[4] Fitchett,[5] Williamson,[6] Arkan,[7] Gill,[8] and Quarry.[9] Those sentences, and the judgments of the Court of Appeal in which they were considered, do not constitute precedents for the sentence, which I am to impose upon you. Each of those cases involve facts which, in many respects, are quite different to the present case. However, they do, in a broad sense, provide some information as to general sentencing practices in cases such as this. In that way, they are of assistance in providing a guide as to the range of sentences, which the courts have imposed for the most serious crimes of murder, and, in particular, those involving the violent killing of the very young or the very vulnerable. It is in that way that I have taken into account the sentences, which were imposed in those cases.

78 Ultimately, the sentence, which I am to impose upon you, must give effect to the purposes of sentencing, to which I have just referred. In determining the sentence, I have taken into account the circumstances of gravity, which attended your offending. In particular, I have taken into account the fact that the primary victim of your crime was a helpless, defenceless infant. Your offence involved an appalling degree of savage violence. You used a weapon, with which you had armed yourself earlier in the night, for the purposes of threatening, or engaging in, violence. The seriousness of your offending was aggravated by your subsequent conduct, and, in particular, by your attempt to cast the blame, for your dreadful crime, onto another young innocent person, who, as I stated, you considered to be a soft target.

79 On the other hand, I also take into account the mitigating circumstances, which attend your case. First and foremost of those circumstances is your young age, at the time of the offence, and at the time of sentence. I am fully mindful of the principle that, in determining whether a sentence of life imprisonment is appropriate, the offender's age is a relevant and important consideration, because, obviously, the younger the offender, the more severe a sentence of life imprisonment will be.

80 In addition, I take into account that, because of the nature of the offence for which you have been convicted, you will be at risk of harm in the prison environment. Although it is likely that you will be treated as a protection prisoner, nevertheless there will be risks and dangers to your safety, which will make a sentence of imprisonment upon you more onerous.

81 Finally, I also take into account the matters relating to your background, which I have already discussed. While, as I stated, those matters do not excuse your offending, nevertheless I do take into account that you are the product of a most unstable and dysfunctional family life, that you have had no stability in terms of where you have resided, and that you have been a victim of abuse. Those circumstances none of which were of your making - have played a role in shaping your personality. Put simply, you do not come before the Court as a person who has been fortunate enough to have the benefit of a stable home life and a proper upbringing.

82 The decision, as to the appropriate sentence in your case, has been particularly difficult, and I have given it careful and anxious consideration. A sentence of life imprisonment has been correctly described as a dreadful sentence, which should be reserved for dreadful cases. The fact that you are young, only 21 years of age, is an important factor militating against the imposition of a life sentence in your case. Giving that factor, and all of the factors in your favour, full weight, I am nevertheless driven to the conclusion that a sentence of life imprisonment is the only appropriate sentence in the circumstances of this case. If I were to impose any lesser sentence on you, this Court would have failed in its duty to properly express the condemnation and abhorrence of the Court, and the community, of your crime, and it would have failed in its duty to do its best to protect the young and vulnerable members of our society, by ensuring that the sentence imposed on you is, to the fullest, a deterrent to others. Accordingly, I have come to the conclusion that the only appropriate sentence, to be imposed upon you, for the murder of Zayden VealWhitting, is a sentence of life imprisonment.

83 The question that remains is whether I should fix a minimum nonparole period. Ms Williams, on behalf of the prosecution, in submitting that I should impose a life sentence, conceded that I should set a nonparole period. In my view, that concession is correct for a combination of two reasons. First, you were young at the time of the offence, and you are still young. You face a long term of imprisonment in circumstances that will be more onerous than for other prisoners. If you survive to an age equivalent to the normal life expectancy, such a sentence would be extraordinarily long. Secondly, in almost each of the other cases, to which I have been referred, a nonparole period was set. As I have stated, those cases are not precedents for your sentence. Nevertheless, cases such as Acar, Freeman and Farquharson, involved appallingly evil acts of murder of children, in the trust and care of the offender, for the basest of motives. In each of them, the offender was granted a nonparole period. Principles of consistency of sentencing militate in favour of the setting of a minimum nonparole period in your case also.

84 In determining the length of your non-parole period, the same principles and purposes apply, as those which are applicable to fixing your head sentence, save that, in the case of the non-parole period, more weight is attached to your personal circumstances, and, in particular, to the considerations of your age, your background, the likely circumstances in which you will serve your sentence, your prospects for rehabilitation, and the need to protect the community from you. It is for that reason that the non-parole periods fixed in the other cases, which I have already mentioned, are of less utility than in fixing your head sentence.

85 So far I have only addressed my remarks to the most serious offence committed by you, the murder of Zayden VealWhitting. You have also been convicted of one charge of aggravated burglary, and two charges of theft. The aggravated burglary committed by you was, of itself, a serious crime. However, I accept that the offending by you, in respect of the aggravated burglary, and the thefts, was very much part and parcel of the principal charge, on which you have been convicted, the charge of murder. That consideration will be reflected in the sentences which I impose in relation to the charges of aggravated burglary and theft.

86 Taking those considerations into account, I sentence you as follows:

(1) On count 1 (the murder of Zayden VealWhitting) I sentence you to life imprisonment. I direct that you serve a minimum of 32 years' imprisonment before you become eligible for parole.

(2) On count 2 (aggravated burglary) I sentence you to two (2) years and six (6) months' imprisonment.

(3) On count 3 (theft of Mathew Tisell's wallet) I sentence you to four (4) months' imprisonment.

(4) On count 4 (theft of Mathew Tisell's sunglasses) I sentence you to one (1) month imprisonment.

Section 16 of the Sentencing Act 1991 provides that the sentences on counts 2, 3 and 4 will be served concurrently with each other and with the sentence on count 1. However, in order to avoid any future doubt about the issue, I direct that the sentences on counts 2, 3 and 4 be served concurrently with each other and with your sentence on count 1. Thus, your total effective sentence will be a sentence of life imprisonment, with a minimum period of 32 years before you become eligible for parole.

87 Pursuant to s 18(4) of the Sentencing Act 1991, I declare that a period of 436 days be reckoned as already served under the sentence which I impose. I shall cause that declaration to be noted in the records of the Court.

[1] [2007] VSCA 102; (2007) 16 VR 269.

[2] R v Acar [2011] VSC 310.

[3] R v Farquharson [2010] VSC 462.

[4] R v Freeman [2011] VSC 139.

[5] R v Fitchett [2010] VSC 393.

[6] R v Williamson [2000] VSC 115.

[7] R v Arkan [2003] VSCA 170.

[8] R v Gill [2003] VSC 446; R v Gill [2005] VSCA 70.

[9] R v Quarry [2004] VSC 15; R v Quarry [2005] VSCA 65.