R v Swann [2025] VSC 702

1. Mr Benjamin Swann, you have pleaded guilty to child homicide contrary to s 5A of the Crimes Act 1958, by your killing of Elijah Kolini Vaihu on 20 January 2024, when he was 115 days old. The offence of child homicide carries a maximum penalty of 25 years' imprisonment. As a Category 2 offence under the Sentencing Act 1991, the Court must impose a custodial order unless certain circumstances are found to exist.[1] It is not suggested that any of them do.
2. You had first met Elijah's mother, Ms Elyce Vaihu, some three or four years earlier, but had lost touch. In July 2023, you contacted Ms Vaihu again and the two of you became a couple. Ms Vaihu was around three months' pregnant at this time. She was no longer in a relationship with Elijah's father.
3. Elijah was born at the Werribee Mercy Hospital on 27 September 2023 about 15 weeks' prematurely following an emergency caesarean section. He required resuscitation and intubation and other medical treatment. Elijah was transferred to the neonatal intensive care unit at the Mercy Hospital in Heidelberg and then returned to the Werribee Mercy Hospital.
4. Elijah did well in hospital, and on 13 January 2024, he was taken home (or initially to her sister's home) by Ms Vaihu.
5. On 18 January 2024, some five days' later, you were staying at Ms Vaihu's house to help her care for Elijah. Elijah was unsettled. You had not stayed there the night before. Elijah had his scheduled feed at midnight, following which you and Ms Vaihu went to bed. Elijah awoke regularly and remained unsettled, and you got up to settle him on at least one occasion.
6. At about 3am on 19 January 2024, Elijah was due for a scheduled feed. He was crying. Ms Vaihu woke up and asked you if you wanted her to attend to Elijah. You responded 'Don't fucking worry about it because I am already up'. Ms Vaihu thought you were in a bad mood. A short time later, Ms Vaihu heard a loud bang that sounded like something hitting a wall and Elijah started crying intensely before becoming quiet. You took Elijah into Ms Vaihu's bedroom and passed him to Ms Vaihu, saying 'Take this fucking baby'. Elijah was crying again. Ms Vaihu settled Elijah, and he stopped crying, so she passed him back to you so he could be fed. Ms Vaihu then noticed that Elijah was making a wheezing noise and appeared to be struggling to breathe. His arm was floppy. Ms Vaihu said she would call an ambulance, but you asked her to wait. Elijah started to change colour. He was still not breathing normally.
7. At 4:07am, Ms Vaihu called triple zero. She was instructed to provide cardio-pulmonary resuscitation, and she remained on the phone to the call operator until paramedics arrived at the house. During this time, you were performing mouth to mouth resuscitation on Elijah. Paramedics arrived at 4:15am. They saw that Elijah was purple. He had a pulse, but was only taking one breath per minute. The paramedics asked you what happened, and you said that Elijah had been crying and wouldn't stop for the last hour, and that you only had noticed his current state when you handed him over to Ms Vaihu.
8. Intensive care paramedics arrived at 4:19am. The paramedics took Elijah to Werribee Mercy Hospital. You and Ms Vaihu followed the ambulance. At Werribee Mercy Hospital, further attempts were made to resuscitate Elijah and to provide him with intravenous fluids. He improved for a short period of time, before his breathing deteriorated further. He was transferred to the Royal Children's Hospital, arriving at 8am. He was critically unwell. Scans showed that he had suffered significant cranial trauma, including occipital and right parietal bone fractures and a severe traumatic brain injury.
9. Ultimately, no surgical intervention or any other form of life-saving treatment was possible.
10. On 20 January 2024, Ms Vaihu agreed to Elijah's life support being withdrawn, and Elijah was allowed to die.
11. By your plea, you accept that, while frustrated, tired and angry, you deliberately caused blunt force trauma to Elijah's head and that this trauma caused the injuries, including the fracture to his skull and associated brain injuries, that resulted in his death a day later.
12. As I said, Elijah was born prematurely. He was only 11 days old in 'corrected' age at the time of his death. He had overcome great medical complications upon being born. His fragile health had only just began to stabilise when you killed him. His vulnerability at that time cannot be overstated.
13. That said, it is important to bear in mind that although by your plea you accept that you caused the blunt force trauma with the intention of causing serious injury to Elijah, you are not to be sentenced on the basis that you intended to kill Elijah, or that you intended to cause him really serious injury. You have been charged with, and pleaded guilty to, child homicide, not murder.

1. The sentence to be imposed may only be for the purposes of punishing you to an extent and in a manner which is just in all of the circumstances, deterring you or other persons from committing offences of the same or similar character, establishing conditions within which your rehabilitation may be facilitated, manifesting the denunciation by the court of the type of conduct in which you have engaged, and protecting the community.[2] In sentencing you, I must have regard to the maximum penalty of 25 years prescribed for the offence of child homicide, current sentencing practices, the nature and gravity of the offence, your culpability and degree of responsibility for the offence, the impact of the offence on the victims, your personal circumstances and the personal circumstances of the victims, your plea of guilty and the stage of the proceedings at which you indicated an intention to plead guilty, your previous character, and the presence of any aggravating or mitigating factors concerning you or any other relevant circumstances.[3] My task is to arrive at a sentence that is just following an instinctive synthesis of all these features. The sentence imposed must be no greater than is required by these considerations. Because that is the task involved in sentencing you, the sentence I impose should not be seen as a reflection of the value of Elijah's life.

1. I accept that you hoped to be like a father figure to Elijah in the future and that you were at Ms Vaihu's house that night for the purpose of helping her with Elijah, not for harming him, and that you had helped her with Elijah earlier that night and on previous nights (although not the immediately preceding night). Your actions were unpremeditated, and short-lived, and contributed to by the frustration that all tired parents experience when a newborn baby refuses to settle.
2. Nonetheless, the killing of a child is always a serious offence,[4] and I consider this to be a serious instance of this serious offence. Elijah was newly born and entirely defenceless. He was in your care and his mother was trusting you to look after him, which increases the gravity of your offending.[5] By your actions, Elijah will now never grow up or old or experience a life. His mother in particular will now have to live with an ongoing sense of grief and longing with only the briefest of memories of her son to comfort her. I agree with and adopt the words of Vincent J, who said over twenty years ago:

When the life lost is that of a child for whose welfare the perpetrator was as parent, guardian and simply as an adult human being personally responsible, the situation must be viewed very gravely. After all, the true value of any community must be assessed in terms of the degree of genuine recognition that it gives to the rights and dignity of its most vulnerable and disadvantaged members. ... Perpetrators who criminally beat or otherwise hurt children as a means of relieving their own sense of frustration or anger must anticipate the possibility that the law will respond in a fashion designed to vindicate the victim's rights and demonstrate the commitment of the society, which they represent, to its stated values.[6]

1. And the words of Kaye JA, who said some five years ago:

The law regards all human life as unique and sacrosanct. However, the life of an infant or a young child is especially precious, because children ... are so vulnerable and defenceless. The ordinary natural instinct of any human being is to feel tenderness and protectiveness towards an infant or a young child. The assault, that you inflicted on [the child], by which you brought his life so prematurely to an end, contravened the fundamental values of our society.[7]

1. You are now 31 years old. You have no relevant criminal record. You did not have a deprived upbringing and you have led a productive working life surrounded by a large and loving family. Your actions were not the result of a psychiatric illness. I have regard to the numerous statements that have been filed that attest to the assistance and friendship you have provided to your family and friends. I accept that you have been a kind and loyal cousin and uncle and nephew and friend to many people and have contributed to the community both through your work as a carpenter and in your basketball coaching.
2. This has been, and will be, your first time in custody. As a person guilty of killing a child, you will be at risk in custody and will have to spend at least a considerable amount of time in protection. In this way, your time in custody will involve additional hardship for you.
3. You have successfully completed three educational courses while on remand. Those courses are 'Participate in workplace safety arrangements', 'Received Goods' and 'Use hygienic practices for food safety'. While on remand, you have been ineligible for, and therefore have been unable to access, any clinical offence-specific or rehabilitative treatment programs. You have, however, independently engaged with the Alcohol and Other Drugs service and participated in an assessment. Your transfer to a different remand facility has precluded participation in that program. You have been referred to a number of other programs and educational courses, but your limited time while on remand has prevented your completion of them. I accept that you have, as much as possible, engaged with prison programs.
4. You were taking methylamphetamine at some time - whether that be days, weeks or months - prior to this offending and traces of methylamphetamine were found on a toxicological analysis of Elijah's hair. There is no suggestion, of course, that Elijah was ever administered methylamphetamine and I am satisfied that the toxicological finding was due to Elijah's exposure to traces of methylamphetamine from his time with you. Also, there is no suggestion that you were affected by methylamphetamine on the night of 18 January 2024. In these circumstances, your history of taking of illicit substances is of no relevance when it comes to assessing the seriousness of your offending.
5. You have a son who resides in Westen Australia with his mother. You have had intermittent contact with him. Certain submissions relating to your relationship with him were put in writing in advance of your plea but were withdrawn orally. It was submitted that you hope to rebuild your relationship with your son on your release and that this would serve as a strong incentive for you then to remain offence free, but it was clarified that his mother might not be happy for this to occur. The true nature of your relationship with your son and your son's mother remains unclear. In these circumstances, I do not consider that their presence materially influences my sentencing consideration.
6. It seems that, after Elijah was born, your relationship with Ms Vaihu deteriorated. Text messages show that you and Ms Vaihu fought because she suspected that you were using drugs, and that you broke up with her on 30 October 2023 but resumed the relationship the following day. Further arguments ensued in early November 2023, followed by another break up on 9 November 2023. You argued at Ms Vaihu's house, culminating in Ms Vaihu repeatedly asking you to leave and saying she would call the police. You apologised three days later, sending Ms Vaihu a text message offering to 'fix the wall' and apologising for your 'actions the other night and the hurtful words'. By 15 November 2023, Ms Vaihu told a social worker that she had been unable to attend the hospital as regularly, and was feeling bad about that and that she was considering rekindling the relationship with you. That occurred.
7. Then, on 22 November 2023, Ms Vaihu messaged saying that she was 'done' with your relationship, and you responded by threatening to attend her house and damage her car. On 25 November 2023, you messaged Ms Vaihu saying 'let's just hope ur safe place is still in one piece it would be unfortunate to come home to a great big mess hahahahahahaha'. In early December 2023, you and Ms Vaihu reconciled. On 20 December 2023, you apologised to Ms Vaihu for your anger and offered to book in to see your general practitioner so that you could 'get back on my meds so I don't get angry again'. The following day, you sent Ms Vaihu a threatening message which stated 'I swear to god if u about an AVO and fucking my chances of ever having my son full time ever it will be the last thing u ever do'. You and Ms Vaihu broke up again on 26 December 2023 following another argument, but rekindled the relationship that same day. On 8 January 2024, Ms Vaihu obtained a Family Violence Safety Notice following an incident of family violence alleged to have been committed by you on 6 January 2024.
8. Charges are pending in relation to your conduct on 6 January 2024 and no part of this sentence is directed at the events that took place that day. But, the matters I have referred to indicate that you have issues with anger management. The text communications between you and Ms Vaihu show your willingness to engage in threatening and aggressive or violent behaviour, followed by apologies and protestations of affection. Your need to address your anger was recognised by you (and Ms Vaihu) prior to Elijah's death. You first attended upon a general practitioner in July 2018 in relation to your issues with anger, following which you were referred to a psychologist. On 30 December 2023, you attended, with Ms Vaihu, on a general practitioner as a first step in obtaining further assistance. You saw that doctor again on 6 January 2024, when you were prescribed sertraline and referred to a psychiatrist for what the general practitioner thought was ADHD. You had not seen the psychiatrist before you were taken into custody. Following the incident of alleged family violence on 6 January 2024, and after a referral from Victoria Police, Orange Door engaged with you, and you agreed to and were awaiting a referral for a Men's Behaviour Change Program.
9. Your tendency to violent or threatening behaviour raises a concern about your prospects of rehabilitation, but, on the other hand, the fact that you recognised your problems with anger management, and were in the process of taking steps to address it, together with your supportive family and lack of criminal history and your engagement in courses while in custody, are all positive features when considering your prospects of rehabilitation.
10. I emphasise that you are not being sentenced for anything other than what you did to Elijah on the morning of 19 January 2024. These concerning aspects of your relationship with Ms Vaihu are relevant only because they place your offending in context and to the extent that they impact on the need for specific deterrence and your prospects of rehabilitation. I should say, also, that I accept that relationships are complex and multi-faceted and that there would have been occasions where you provided valuable and kind support to Ms Vaihu and Elijah.
11. Your presence at Ms Vaihu's house on the night of 18 January 2024 was contrary to the terms of the Family Violence Safety Notice that had been obtained by Ms Vaihu. Ms Vaihu messaged you that day and said that she was struggling to cope with Elijah's care as he was not sleeping well and asked you to help her. Often, the fact that a person is also in breach of a family violence intervention order, or like order, is an aggravating factor when they commit an offence of family violence. I do not, however, see the existence of this order, or notice, as an aggravating factor of significance here. This is because you were present that night at Ms Vaihu's specific request and in circumstances where she had sought your assistance with looking after Elijah.
12. There are, however, two highly significant, and related, aggravating features of your offending that carry real weight. The first is that you initially discouraged Ms Vaihu from calling an ambulance and then failed to tell the paramedics and doctors who were desperately trying to save Elijah's life (or Ms Vaihu) that you had forcefully struck Elijah's head shortly before his concerning symptoms developed. The second is that you later suggested, once it was apparent that Elijah had suffered head injuries that resulted in his death, that Ms Vaihu, Elijah's mother, was or might have been responsible for those injuries.
13. In terms of the first of these, and despite being asked what had happened, you did not mention what you had done, and indeed falsely conveyed that nothing out of the ordinary had happened:

(a) to the paramedics who arrived at Ms Vaihu's house;

(b) to the doctors at the Werribee Mercy Hospital;

(c) to the doctors at the Royal Children's Hospital; and

(d) to Ms Vaihu herself including when she sent you messages from the Royal Children's Hospital saying:

... tbh [to be honest] baby isn't doing well at all. Did he fall or hit his head with you?

If something happened I need you to tell me so that they know what they're dealing with

No Ely I literally picked him up from his cot put him on the change table he was still squawking tried giving him his dummy which he took settled for about 2 seconds then I picked him up he started squawking again I walked to the kitchen to make a bottle for him he started squawking again I tried giving him his dummy he didn't want that at all he started squawking again I then gave him to u, he settled for about 2 minutes then u gave him to me I tried feeding him he wasn't taking the bottle then both. u and I noticed how limp he was going and then obviously we called the ambo's, so unless I am a complete and utter fuckin retard and don't know how to pick up infants anymore I have no idea what's happened.

1. There is no suggestion that if you had told any of these people what you had done then Elijah's life might have been saved, notwithstanding that it seems that his skull fracture and brain injury were not discovered for some time. But you could not have known this at the time and your failure, or refusal, to provide this information indicates that you were, even when Elijah was fighting for his life, putting your own interests above his.
2. Then, when you spoke to the police, you repeated your denial that you had done anything untoward and sought to divert attention to Ms Vaihu. On 19 January 2024, you told police that you thought that Ms Vaihu was 'not handling being with Elijah and was having suicidal thoughts', but you omitted any reference to your own violence that caused the blunt force trauma to Elijah's head. You also said that you gave Elijah to Ms Vaihu then went to get his bottle and when you returned Elijah's breathing was unusual - he was taking short and sharp breaths and then he stopped breathing and changed colour. Then, on 8 February 2024, after saying again that Elijah 'went quiet' only after you had returned him to Ms Vaihu and he was 'in her care', in a formal police interview, when asked what you thought had happened to Elijah, you answered:

I - I don't know. I think his mother did something to him.

1. When asked whether this thought that Ms Vaihu had 'maybe done something' to Elijah was a new thought, you replied that you had thought that from the beginning and that you had been trying to tell the police that Ms Vaihu was depressed and wasn't coping and that, in your eyes, she was 'not fit to be a mother'.
2. This was after you had already told the police in that interview that you thought that Ms Vaihu was severely depressed, that she had told you that, in your words, she felt 'guilty' and that she 'didn't want' Elijah, that she 'wasn't coping at all that ... day', and that on one occasion you had seen what looked like her deliberately trying to cause Elijah to fall out of his swing onto a tiled floor. You also denied in that interview that you had done anything to cause the injuries to Elijah.
3. Knowing, as I'm satisfied you then did when you said these things, that your own actions were the probable cause of Elijah's death, you callously and dishonestly sought to divert attention from yourself and to make the police instead suspect that Ms Vaihu had inflicted the injuries on Elijah that resulted in his death.
4. Your conduct in this regard, again, significantly aggravates your moral culpability.
5. Further, and significantly, you have not demonstrated any remorse, either in the period following Elijah's death or since. Your lack of remorse increases the importance of specific deterrence.
6. You were charged with murder on 8 February 2024. You offered to plead guilty to child homicide on 14 August 2025 and this was accepted by the Crown on 2 September 2025, resulting in your arraignment on and plea of guilty to that offence on 17 September 2025. For sentencing purposes, it is as if you pleaded guilty on 14 August 2025. This was not an early plea because it was after the committal. The fact that you did not indicate that you would accept responsibility for Elijah's death until after the committal meant that Ms Vaihu had to give evidence. When she was doing so, in March 2025, your counsel explored Ms Vaihu's mental state and ability to cope with motherhood prior to Elijah's death and established that Ms Vaihu had a wooden bed head and wooden side tables next to her bed - which can only have been for the purpose of raising the possibility that it was Ms Vaihu who had fractured Elijah's skull and damaged his brain after you had returned him to her. I accept the statement made by Ms Vaihu in her victim impact statement that she was 'traumatised' from '20 months' of being 'blamed' and 'accused, attacked and humiliated' of it being suggested that she was responsible for taking her son's life.
7. The fact that you have pleaded guilty does, however, entitle you to a utilitarian discount, as it has prevented the need for what would have been 'a difficult and highly emotional trial'.[8] It is also indicative that you have, now, publicly accepted responsibility for having inflicted the injuries that caused Elijah's death.
8. I have had regard to the victim impact statements of Ms Vaihu, her sister Jessica Vaihu, Elijah's aunt and godmother Rachelle Kowalski, and one of the paramedics who attended, Janelle Seet. Suffice to say that Elijah's death has impacted them all very considerably. It must not be forgotten, however, that the primary victim of your offending was Elijah himself, who had his entire life before him and will now never grow up.
9. Your productive background, lack of criminal history, family support, insight into your need for assistance with your anger management issues and your behaviour in custody all tend to suggest, as I have said, that you have reasonable prospects of rehabilitation. On the other hand, your lack of any remorse and your preparedness not just to seek to avoid responsibility but also to seek to attribute blame to Ms Vaihu show that your prospects are in fact more moderate.
10. Counsel referred me to a number of cases involving child homicide and one of manslaughter of a child. The head sentences have ranged from between nine years and 12 years of imprisonment. Case comparisons can be a useful tool in gauging current sentencing practices, but no two cases are alike. Particular reliance was placed on DPP v McDonald[9] where, in 2020, a head sentence of nine years was imposed with a non-parole period of six years and eight months. In that case, the offender initially concealed the fact that he had inflicted the injuries that led to his child's death from medical practitioners trying to save his child, and he also had longstanding anger management problems and enjoyed the support of his family and friends. But that offender showed some remorse: he told the mother that he was responsible once it was ascertained that the baby had suffered head injuries, then ran away and hid for two days and tried to commit suicide, and then pleaded guilty without there having been a committal. Also, he did not try to blame the child's mother. Unsurprisingly, I was not referred to any other case where the offender has, after killing a child, not only shown no remorse and denied involvement but also sought to attribute blame on the innocent mother.
11. Further, the sentence in DPP v McDonald, and indeed all but one of the sentences in the other cases, were imposed at a time when the maximum sentence for child homicide was 20 years. In 2020, the maximum sentence for child homicide was increased by the legislature to 25 years.[10] This is relevant to subsequent sentencing because it indicates that 'Parliament regarded the previous penalties as inadequate'.[11]

1. I have now to impose a sentence that adequately takes into account all these different considerations. This is a serious example of child homicide with weighty aggravating features for which you are morally culpable and for which you show no remorse. To be just in all the circumstances, the sentence must adequately express the condemnation by this Court, on behalf of the community, of your wrongdoing, be of sufficient severity to deter others from engaging in such violent acts against a defenceless child, and bring home to you that any further acts of violence of the kind in which you engaged will be met with severe consequences. But, as I said earlier, it must also take into account your particular circumstances including your prospects of rehabilitation, which I consider to be moderate, and your plea of guilty, and, of course, it must be no more severe than is necessary.
2. The process is not an exercise in mathematics, but is a process of instinctive synthesis of all the various considerations I have referred to.
3. Mr Swann would you please stand.
4. For the child homicide of Elijah Kolini Vaihu on 20 January 2024 you are convicted and sentenced to a term of imprisonment of 13 years.
5. I fix a non-parole period of nine years and six months. I consider that period necessary properly to vindicate the sentencing purposes.
6. But for your plea of guilty, I would have sentenced you to 15 years of imprisonment.
7. Pursuant to s 28(4) of the Sentencing Act 1991, I declare that you have served a total of 644 days of presentence detention and I direct that this be reckoned as time already served under this sentence.

[1] Sentencing Act 1991 (Vic) ss 3, 5(2H).

[2] Ibid s 5(1).

[3] Ibid s 5(2).

[4] See, eg, the observations of Croucher J in R v Vinaccia [2019] VSC 683, [71] and in R v Hughes [2015] VSC 312, [111].

[5] R v Hughes [2015] VSC 312, [2].

[6] R v Dempsey [2001] VSC 123, [7].

[7] DPP v McDonald [2020] VSC 845, [28].

[8] DPP v Woodford [2017] VSCA 312, [83].

[9] [2020] VSC 845.

[10] Crimes Amendment (Manslaughter and Related Offences) Act 2020 (Vic), s 4(2).

[11] R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391, 406 [51] (Warren CJ, Maxwell P and Redlich JA). See also Director of Public Prosecutions v McMaster [2008] VSCA 102, [77] (Ashley JA, Lasry AJA agreeing).