Life sentence for Harley Hicks

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SENTENCE WILL NEVER END FAMILY'S PAIN: A look back at the trial and what couldn't be told.

HARLEY HICKS TRIAL: day by day coverage of the murder trial

HARLEY Hicks has been jailed for life with a non-parole period of 32 years for the murder of Bendigo baby Zayden Veal-Whitting.

Delivering his sentence in the Supreme Court in Bendigo today, Justice Stephen Kaye said the killing was “totally and utterly evil’’ and Hicks' offending put his 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,'' he said.

"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.''

Justice Kaye said he watched Hicks throughout the trial and at no stage did he detect any sign of remorse, nor the slightest indication by him of any pity or sympathy for the baby whose life he had taken, or the family whose lives had been 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,'' Justice Kaye said. 

"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".

Justice Kaye said it was unknown why Hicks killed Zayden, but if it was because of one scenario put forward by the prosecution, in that he did not want the baby to wake the other occupants of the house, Hicks murdered an innocent child so he would not be caught stealing.

"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,'' he said.

Justice Kaye said there was no evidence the fact Hicks was on drugs that night caused him to act in an irrational or erratic manner.

"To the contrary, you were systematic in carrying out the 11 burglaries, which I have already described, and you adhered to a consistent methodology in doing so. After you murdered Zayden, you enlisted the aid of ... 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.''

Justice Kaye told the court that on June 14, 2012, having used marijuana and ice earlier that day, Hicks set out from his Green Street home at Long Gully, carrying a shoulder bag and baton that ''was very heavy and, in the wrong hands, it was potentially a lethal weapon''.

"You entered 11 different addresses in the Long Gully area, with the intention of committing thefts or burglaries there,'' he said.

"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.

"You then made your way to Jackson Street, Long Gully. There ... 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.

"Having completed that burglary, you then entered the property at Eaglehawk Road, which was directly opposite the house at Jackson Street. It is probable that you entered through the rear, by climbing over the fence.''

Hicks rifled through the glove boxes of vehicles at that address, before entering the house and stealing a wallet containing $2000 cash, a set of scales and a pair of sunglasses.

"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,'' Justice Kaye said.

"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.''

Hicks then walked further along the road to Jackson Street, where he stole a fire extinguisher before knocking on the door of a friend and persuading him to drive him home, stopping to collect his stolen loot along the way.

"I am satisfied that you murdered Zayden between approximately 2.30 am and 3.30 am,'' Justice Kaye said.

Casey Veal found her son the following morning. She first noted her house had been burgled, and phoned police. Casey then went to wake her son so he was not frightened when police arrived.

"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,'' Justice Kaye said. 

"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.

"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 8.05am.

"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.''

An autopsy found Zayden suffered a minimum of 25 blunt impact injuries to his face, and at least eight to his scalp.

In delivering his sentence, Justice Kaye told Hicks it was plain he "perpetrated an extraordinarily violent bashing on Zayden, involving multiple blows with the baton to the head, the face and other parts of the body''.

"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,'' he said.

Justice Kaye said Hicks went home and "went to sleep, apparently entirely untroubled by the dreadful crime you had committed'' before waking to show his stolen goods to those living with him.

He then left for Gisborne a day earlier than planned "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,'' Justice Kaye said.

The following day, when Hicks found out police were looking for him, he fled and spent the night at the Gisborne football oval.

Police arrested Hicks that day, but Justice Kaye said he had used the time to cook up a false story to protect himself.

"Almost immediately after you were arrested, you falsely claimed that on the evening ... you had been out committing burglaries with a former acquaintance of yours

"At the trial, your counsel, on your behalf, conceded that what you had said to the police about (his) involvement were complete lies. You had fabricated the account to implicate (him), in order to save your own skin.''

Justice Kaye said that having failed in his first attempt to blame another person, Hicks then shifted his strategy and raised the possibility that on the evening of Zayden's death he was out committing burglaries with his twin brother, Ashley.

But Ashley had an alibi, which was supported by his father.

"The murder, by you of Zayden, was unspeakably cruel and callous,'' Justice Kaye said.

"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.

"On your way home, you made sure that you recovered the items, which you had stolen from Wilson Street. When you got home to 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.

"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.''

Justice Kaye said Hicks had a large number of criminal convictions, including priors for armed robbery, aggravated burglary and reckless conduct endangering life, revealing an increasing level of violence.

"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,'' he said.

In November 2009, Hicks was sentence for aggravated burglary and unlawful assault for aiding and abetting two associates when they entered the premises of a married woman and terrorised her, to exact revenge on her husband or her son because Hicks alleged he had been assaulted by them.

In April 2010, Hicks and two friends stole a motor vehicle. The car, in which Hicks was a passenger, crashed into a service station in Long Gully and as a result, he pleaded guilty to offences including reckless conduct endangering life and was sentenced to four months in a Youth Justice Centre.

In April 2011, Hicks committed an armed robbery at a service station in Golden Square.

Justice Kaye said the robbery was pre-planned as Hicks recruited an associate to drive him to and from the service station.

"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,'' Justice Kaye said.

Hicks was arrested on May 27 and taken into custody, before being released on bail.

On April 13 he pleaded guilty to at the Melbourne County Court to armed robbery and received a 12-month Community Corrections Order and ordered to undergo treatment and assessment in relation to his drug and alcohol abuse.

Two months later, Hicks killed baby Zayden.

"The primary victim of your offending in this case was a 10 and one-half-month-old infant, Zayden Veal-Whitting,'' Justice Kaye said. "The life of each child is precious and unique. 

"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.

"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. 

"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.''

In sentencing Hicks, Justice Kaye said he needed to take into account the killer's age, his dysfunctional family upbringing, history of sexual abuse, behavioural issues and longstanding abuse of drugs and alcohol.

"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,'' Justice Kaye said.

However, he said that at the time of killing Zayden it appeared Hicks was not suffering any psychological or psychiatric illness or disorder.

Justice Kaye quoted a psychiatrist report that noted Hicks' substance abuse was the most relevant risk factor to his offending behaviour.

"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,'' Justice Kaye said.

"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.''

Justice Kaye said Hicks' prospects for rehabilitation were "at best, poor'' as he had repeatedly failed to make use of the opportunities afforded him to turn his life around.

"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,'' he said.

"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.

"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.

"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.

"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.

"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.''

Justice Kaye said that in reaching his decision, he considered the fact the victim was a helpless, defenceless infant who was killed with savage violence.

He said Hicks armed himself with a weapon that night with the purpose of engaging in violence and the seriousness of his offending was made worse by his subsequent conduct in trying to cast the blame onto another young, innocent person.

"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 Veal-Whitting, is a sentence of life imprisonment.

Justice Kaye said Hicks' age and personal circumstances were key considerations in determining a non-parole period of 32 years.

Before beginning his sentencing remarks, Justice Kaye made a rare comment about the decision made by the jury in reaching a guilty verdict.

He said it was not the role of the judge to comment on the verdict of a jury during sentencing, but in this case some "wholly intemperate and inappropriate remarks were made, concerning the jury and the verdicts'' by one of Hicks' friends or family members.

He said he was "constrained to observe that, on any rational, objective view of the evidence, the prosecution case against you (Hicks) was, to say the least, very powerful. In my view, the jury was fully justified in reaching the verdicts which it pronounced.''

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