R v Gill [2003] VSC 446

2 Lewis Blackley was two years of age at the time of his death. He was the son of Daisy De Los Reyes, whom you had earlier known as a friend, and with whom you had established a relationship of about three months' duration. Although you were not living with Ms De Los Reyes and her son at their residence at 22 Robin Avenue, Norlane, you would stay there two or three times each week. During this time, Lewis was sleeping on a lounge room couch where he apparently slept better than in his own bedroom. The evidence of maternal and childcare nurses and family friends called at your trial was that Lewis was generally a happy, healthy child and his mother, despite suffering from schizophrenia (for which she was receiving medication), was a good caring parent. This was also the view of Lewis' father, Vaughan Blackley.

3 On occasions Lewis would throw tantrums which could include banging his head against walls or the ground. He would get frustrated easily, was also prone to cry. However, his mother would cope with this by telling him to calm down and by putting him, for example, in the lounge room so as to have some "time out" from him. The idea of putting the toddler into his bedroom or cot and waiting for him to calm down was in fact a strategy suggested to Ms Del Los Reyes by one of the childcare nurses.

4 There is evidence from witnesses, such as Mark Shuttleworth and Ms Zenaida Burke, (both friends of Ms De Los Reyes), that you and Lewis played together and got on well. As late as 9 November 2001 Ms Dora Sismaet, a child carer who looked after Lewis each Friday, described you and Lewis playing together in the front yard and spoke of his reluctance to leave you to go to childcare. However, the environment at Robin Avenue had the capacity to irritate you. According to the witness Merlin Tawa, you had told him about a week before the death of Lewis: "These guys are driving me crazy. I'm going to my brother's". Clearly you did not do so and on Saturday, 10 November you were present throughout the day at Robin Avenue.

5 It appears that during the morning and early afternoon Lewis was grizzly, seeking lollies and the attention of Ms De Los Reyes, who I will refer to as Daisy from time to time for convenience. Nonetheless, Lewis slept from about 12.30 to 3.30 p.m. during which time you and Daisy smoked marijuana through a bong. Later that day you went with Lewis and his mother to the local supermarket and later again, about 5.15 p.m. your mother, Ms Sarah Kilburn, drove the family to the polling booth to vote in the Federal election. She described Lewis as becoming distressed and crying when Daisy left the car but settling down on her return.

6 The subsequent sequence of the events, and the times that they occurred, is not precise, but during the period that Daisy was preparing your evening meal she had put Lewis, who was yelling and screaming, into the lounge room and closed the door. This was to give her some time out and was in accordance with the advice of the childcare nurse. Subsequently at some point in the early evening Ms De Los Reyes had rung the child's father, Vaughan Blackley in Sydney. Amongst other things she had told him was that Lewis was "driving her nuts", that he was "whingeing all the time". She wanted to know if Mr Blackley could take him back to Sydney for a holiday. Mr Blackley could not do so. In his evidence he said that Daisy was not angry but sounded like she needed a break.

7 On your account to police there was no doubt that you were finding Lewis' grizzling very annoying. You describe Lewis as making you cranky. Indeed, in your first record of interview with investigating police you put it this way: "He was clingy to Mum. I think it offended me a bit with the fact that day he just did not stop crying. He didn't stop crying, and as I say I tried to comfort him and he just didn't want a bar of me and I think it offended me and I just reacted".

8 Putting aside for the moment what being offended by the attitude of a two year old who preferred his mother to you indicates about your own level of maturity, the reaction you mentioned occurred in Daisy's bedroom after she had changed Lewis' nappy. It involved you picking up Lewis by the waist and throwing him backwards over your head. Fortunately you were at the end of the bed and he fell on to the mattress. Not surprisingly he continued to cry. According to Ms De Los Reyes who comforted her son, she told you not to do that again and you left the room without responding. Your explanation to police for your actions was that it was a product of your anger.

9 It is not suggested that Lewis suffered any permanent damage from this episode, nor from another incident which occurred either before or after dinner, (depending on the version accepted) in which you hit him, (or tapped him) on the head up to 20 times with a video cassette. Whilst you assert this was a game which Lewis enjoyed, you also expressed the view in retrospect that it must have hurt him. However else it may be characterised, it is in my view indicative of the anger fomenting within you.

10 On the evidence before the court Lewis ate dinner in his highchair. After finishing it Lewis went into the lounge room where he was crying again, despite the efforts of Daisy to calm him by occupying him with toys.

11 From early evening onwards you and Daisy had been drinking glasses of Lambrusco from a cask purchased that afternoon at the supermarket. You also smoked some marijuana. By about 9 p.m. Lewis had effectively cried himself to sleep. He was on a lounge room couch where Daisy put a blanket over him. Although you intended to watch a video together, Ms De Los Reyes indicated that she was tired and she went to bed about 9.30 p.m. She estimated that you had consumed about four glasses of wine by that stage and you continued to smoke marijuana. According to Ms De Los Reyes she did not wake up again until about 9.40 a.m. She was aware of you coming to bed and at one stage heard the toilet flushing. She had no conversation with you, nor did she hear any crying from Lewis during the course of the evening.

12 It was Ms De Los Reyes who found her son dead next morning. He was very cold and stiff and blue in the face. The blanket was still over him. She picked him up and shook but he did not respond. She nursed him and was crying. Not knowing what do so, Ms De Los Reyes rang her friend Mark Shuttleworth. He described her as distraught and he could not initially understand what she was saying. He told Daisy to ring an ambulance which she did and he came immediately to the premises where he found her agitated, distressed and crying. He described you as pacing up and down behind one of the lounge room couches mumbling. Ms De Los Reyes described you as shocked but you said nothing to her about Lewis.

13 There is no doubt that the jury accepted that Ms De Los Reyes had nothing to do with Lewis' death. Much was made in the course of your trial of the fact that she suffered from and was receiving treatment for schizophrenia. However, there is no evidence to suggest that this illness had anything whatsoever to do with the death of Lewis.

14 In the period shortly after his death when notified that Lewis had died of head injuries, Daisy attributed it to his head banging tantrums. Later on 19 November, when more was revealed of Lewis' injuries, the conversation between you and Ms De Los Reyes was recorded by police on a listening device. She asked you what happened and you said you did not know. She responded, "No, you tell me the truth, Haemon, did you touch him?" To which you responded "No". That was, of course, a lie.

15 Indeed, earlier on in the same day you had given the police the first of two accounts of your conduct towards Lewis. Since you did not give evidence at your trial, these constituted the only version of your behaviour which the jury had to consider. The second of these interviews was made by you at the Melbourne Custody Centre subsequent to you having been charged with murder. You told the police "I believe Lewis' death is the fault of mine", and you said that you had withheld parts of the story. You blamed your actions on a borderline personality disorder, and excessive alcohol consumption, causing you to lose control of your actions. In this account you describe yourself as having consumed many glasses of Lambrusco throughout the evening and being in an intoxicated daze after Daisy had gone to bed.

16 You stated that Lewis started crying again and you bit him on the hip. There were in fact three bite marks located by Dr Anthony Hill, a forensic dentist, one of which was on the right hip, and you later admitted to Dr Lester Walton, consultant psychiatrist who prepared a report on your behalf, that you had also bitten Lewis on the leg. Having bitten Lewis on the hip, you punched the injury in an endeavour to conceal the bite. Dr Matthew Lynch, a forensic pathologist, observed a large bruise in this area caused by at least one impact.

17 You also describe giving Lewis a Chinese burn which may possibly have broken his leg. Indeed, Dr Lynch observed a broken right tibia. There was underlying surface bruising which was consistent with being inflicted with fingertips. Dr Lynch stated that a twisting force, applied by hand, could have caused this break. At least a moderate degree of force was necessary. These injuries were not the cause of Lewis' death, nor were a number of bruises located on his body at postmortem. Some of these bruises were consistent with being sustained by an active two year old over time and some were not. You were asked whether you had hit Lewis in areas other than the hip. You replied, "It's possible but I do not know".

18 In fact Lewis Blackley died from a head injury as a result of brain swelling and Dr Lynch observed a number of recent bruises involving the scalp. He expressed the opinion that there were a minimum of three or four inflictions of blunt trauma to the head which would have required mild to moderate force.

19 A prominent neurosurgeon, Mr Geoffrey Klug, told the jury the fatal brain injury, (cerebral oedema), could have been caused by one severe blow which was most likely, or a combination of blows. The force required to produce the injury was very substantial. It was highly likely such injury would have rendered Lewis immediately unconscious. Moreover, Mr Klug stated that the injuries could not have been caused by head banging.

20 Both doctors suggested that the lack of screaming by Lewis from the pain which would have been occasioned by the broken leg indicated loss of consciousness at that time. The exact time of death cannot be fixed, and it is likely, as you told investigating police, that Lewis was still breathing when you went to bed. It is also likely that you did not appreciate that you had broken Lewis' leg. However, according to your account you did realise that you had hurt Lewis more than you intended. Nonetheless, you left him, retired to bed and did not alert Daisy to the situation.

21 You advanced a number of reasons for your actions. At one point in the second interview you stated, "I intended to hurt Lewis because he hurt us throughout the week with just his actions, reaction. His behaviour, his misbehaviour". Later you said, "I intended to let him know who's 'boss' cos he was a little shit. He was demanding, he was terribly demanding, demand, demand, demand. Just cry, sook, try and get his own way and usually Daisy would give up and give him his own way".

22 The jury verdict indicates that they were satisfied from the circumstances surrounding Lewis' death, together with your own admissions of violence and the extent of the injuries sustained by Lewis that you caused his death. Further, the jury were satisfied that at the time you inflicted the fatal blow or blows you did so with the intention of causing him really serious bodily injury.

23 The evidence does not suggest any long term mistreatment by you of Lewis, but rather the opposite. Nor is this killing one which was premeditated by you. Further, I do not believe the jury would have found that you had a specific intention to kill your lover's child. Your relationship with Ms De Los Reyes (who I accept you loved), was too important for you to deliberately jeopardise it in that fashion. Indeed, I accept that you were shocked to discover Lewis' death. However, the events of that day indicate a growing level of frustration and anger on your part, punctuated by acts of physical aggression. That frustration and anger was fuelled over time by your drug and alcohol consumption until it eventually exploded into your ultimate acts of violence.

24 In this regard, Dr Lester Walton, consultant psychiatrist who examined you was of the view that the anti-depressant drug, Efexor, (which you were apparently taking), together with the marijuana and alcohol may have attributed to the disinhibition of aggressive urges. He does not accord any role to the small amount of amphetamine you claimed to have ingested on the previous Friday, and nor do I.

25 I do accept, however, that the fatal violence occurred at a time when you had temporarily lost your self control. Among the factors involved in your course of conduct was your own level of immaturity referred to by both Dr Walton and Mr Ian Joblin, a forensic psychologist, who also submitted a report on your behalf.

26 In my view, that immaturity is exemplified by the statement that you, as a grown adult, wanted to show a two year old child who was boss.

27 The further distorted train of thought which emerges was that you were, in effect, punishing Lewis out of concern for the distress he was causing your partner, Daisy. In this regard Mr Joblin expressed the opinion that you had a child like dependency on Ms De Los Reyes and that your efforts to end the child's crying were made in an effort to protect her mental state and in turn, to protect the relationship. Dr Walton suggested that you may have felt that you were competing for the mother's affection.

28 Whatever the motivation for your behaviour, it represents a grave abuse of the position of power and control that you held over this young child. Instead of the care and protection to which Lewis Blackley was entitled, he received aggression and violence and pain and suffering. On any view your conduct constituted a gross breach of trust.

29 The sentences imposed upon parents or those in charge of children who kill them vary according to the circumstances of the killing. At one end of the spectrum are premeditated killings, often motivated by vengeance or hatred directed against a former partner and killings following prolonged periods of child abuse.

30 At the other end, the killings resulting from temporary loss of self control and perpetrated in a state of high emotion. However categorised, all such killings constitute serious offences and the courts, by the sentences they impose, have a duty to protect the young and vulnerable and to seek to deter persons minded to inflict fatal violence upon them. Further, the courts must clearly and unequivocally denounce the type of behaviour upon which you embarked.

31 In arriving at an appropriate sentence there are a number of matters, personal to you, which I must take into account. Before referring to them, I wish to say something about the effect of Lewis Blackley on his family. Although he was only two years of age, Lewis had brought great happiness to them. For Daisy De Los Reyes, Lewis brought the joy of motherhood and a feeling of being needed and hence, important. The joy that Ms De Los Reyes experienced with Lewis, whom she loved and adored, has now been replaced by feelings of emptiness and isolation. Ms De Los Res writes of a distrust of men engendered by what she regards as her betrayal by you.

32 It was put that this latter sentiment was inconsistent with her earlier protestation of her love for you made at the trial, as well as her temporary residence with your family after Lewis' death and her gaol visits to you. It seems to me however, that Ms De Los Reyes' current attitude is perfectly consistent with a gradual acceptance of the reality of what befell her child at your hands.

33 Mr Vaughan Blackley, the father of Lewis, writes of the emotional trauma he has experienced at his son's death. Apart from the great sadness at the death of the child he so obviously loved, Mr Blackley is faced with feelings of depression and on such occasions as birthdays, Christmas, Father's Day and long weekends when he and Lewis were together, that depression is exacerbated. Additionally there are understandable feelings of guilt of not being able to be with Lewis at the time. Mr Blackley writes that he has gone from being outgoing and gregarious to a person with minimal social interaction with the everyday world and has been undergoing psychological counselling.

34 In her Victim Impact Statement, Mrs Kathleen Thompson describes the emotional turmoil occasioned by the death of the grandson that she loved. That emotional upheaval extends to her husband and the wider family in New Zealand (including a young cousin who played with Lewis during the Christmas vacation of 2000). Like her son, Mrs Thompson has ceased to be an outgoing person and is struggling to get on with her life and find some happiness.

35 In summary, the family of Lewis Blackley will never recover from his tragic and untimely death.

36 Haemon Gill, you are currently 30 years of age, having been born in Geelong. You have a brother and sister who both hold responsible jobs. Your father is an importer and exporter and your mother is employed in an art and craft store. Both have attended court in support of you.

37 Your parents separated when you were aged about 13 and thereafter you lived most of the time with your mother until 2001 when she took out an intervention order against you. Apparently she objected to your drug use and the fact that you stole some of her jewellery and pawned it.

38 From mid-2001 you resided with your paternal grandmother although between September 2001 and the time of this offence, you spent periods of time living with Ms De Los Reyes. You were educated at Chilwell Primary School and Geelong High School. You left the latter school half way through year 10, although you completed the year at the Victorian Correspondence School. Your education was not free of incident, you having been suspended on a number of occasions for what you described to Mr Joblin as "minor skirmishes".

39 After leaving school you initially worked for a clothing manufacturer in Geelong. While operating a machine your hand became jammed and you suffered a serious injury requiring several operations. It was about this time that you had developed an interest in art and design - particularly clothing design - and this setback to your ambitions to become a creative artist had a serious impact upon your psychological state.

40 In the ensuing years, although there were periods of unemployment, you had jobs which included brickie's labourer, carpenter, bottle shop attendant, forklift driver with a soft drink company and employment with a carpet manufacturer. You also spent some time working at your father's retail clothing outlet in Altona. Throughout this period you continued with your art and design.

41 From the age of 20 to 24 you worked on a garbage run, becoming extremely fit in the process. You augmented your fitness with weight training. Indeed, according to your father, you were always sport-minded, excelling in such activities as mountain bike riding, snowboarding, skateboarding and surfing. Because your work on the garbage run finished early you were able to devote time to designing clothes for skateboarders and surfers. You returned to work in your father's business in this capacity. However, disagreement about the style and quality of the clothing you wished to have produced resulted in a fall out between both of you.

42 You returned to the garbage run for about 12 months and thereafter obtained a heavy truck licence and drove recycling trucks for Visy Industries. That job ceased in early 2001 because the company lost a relevant tender and thereafter, you worked on your designs, some of which you managed to sell. At this time you also commenced working with wood veneer and a photograph of your creative endeavours was tendered to the Court. Additionally, while in prison, you have been commissioned by inmates to paint portraits of their loved ones from photographs. It is fair to say that you have demonstrated considerable artistic talent.

43 I was provided with nine character references written on your behalf. Terms such as soft and charming, loving, caring, polite, well-mannered, pleasant, fun-loving and artistically talented, are used about you. The writers also regard your present offence as quite out of character.

44 I have already mentioned the views of Dr Walton and Mr Joblin in relation to your immaturity. The gist of their opinions is that you are reasonably intelligent, you are not psychotic, and you do not suffer from a personality disorder. Both, however, agreed that you have a dependent personality exemplified by your dependence upon Ms De Los Reyes. In such a person drug dependence is not unusual and you have, over the years frequently used cannabis and been addicted to heroin for which you ultimately substituted amphetamines. I have already referred to the possible effects of drug and alcohol upon your offending.

45 Paralleling your drug use you have several prior convictions commencing when you were 20 years old. Apart from the offences involving the obtaining of the intervention order (which included the intentional damage of property), there are several convictions for assaulting the police. None of your offending attracted a custodial penalty, but it is perhaps indicative of a problem of anger management. Indeed, you told the interviewing police: "I can explode at times".

46 It was put by Dr Walton in his report that you "seemed to be appropriately remorseful". I have no doubt that you regret the death of Lewis Blackley, but your primary concern is the destruction of your relationship with Daisy De Los Reyes and your own situation of incarceration. Indeed, despite comments you made to police in your records of interview, you refused to fully accept responsibility for Lewis' death. Consequently, your state of mind falls well short of genuine remorse.

47 In sentencing you I take into account your lack of maturity which affected your conduct and is also reflected in your subsequent comments in the records of interview. Further, I take into account the circumstances surrounding the commission of this offence including the lack of premeditation of your action.

48 I also have regard to your age; your previously good work record; the potential you have to develop your artistic talents; the ongoing family support that you enjoy. These are all factors which point to your capacity to rehabilitate yourself.

49 In arriving at the appropriate sentence I have had regard to the range of sentences handed down by this Court for offences of this nature, although each case necessarily depends on its own facts. Balancing as best I can the sentencing principles enunciated in the Sentencing Act, I have determined that you should be imprisoned for a period of 19 years. I fix a period of 14 years before you become eligible for parole.

50 I declare that the period of pre-sentence detention reckoned as having been served under this sentence is 692 days. I direct this declaration and its details be entered in the records of the Court.