LAWYERS for Harley Hicks have argued the 32 year non-parole period of his life sentence for the murder of baby Zayden Veal-Whitting was manifestly excessive and would lead to 'utter helplessness' for the killer.
Following a five-week trial in March last year, Hicks was sentenced to life in prison for murder, two years and six months for aggravated burglary, four months for one count of theft and one month for a second count of theft.
Hicks bludgeoned the 10-month-old to death with a home-made baton whilst out committing a series of burglaries in the Long Gully area overnight on June 14/15, 2012.
In sentencing, Justice Stephen Kaye said what Hicks did was "totally and utterly evil'' and his offending put his case "in the worst category of offences of murder which come before the courts''.
Representing Hicks, defence counsel David Hallowes said there were a number of cases where a life sentence was imposed which attracted much lower non-parole periods than that imposed on his client.
He said there was no argument the killing was in the worst category of offences of murder and there was no challenge to the head sentence, but the non-parole period was excessive.
Mr Hallowes put two grounds for appeal to the Supreme Court of Victoria, Court of Appeal in Bendigo.
The application to seek leave to appeal was based on Hicks' age at the time of the killing; the risks to him while in custody in the light of the nature of the offence; his likely permanent status as a protection prisoner; the chaotic, abusive and traumatic background against which his personality was wrought and the fact those chaotic and abusive forces that shaped his character were entirely visited upon him by the adult world and not of his making;
It was also put that the killing took place without planning but was instead spontaneous and impulsive; the absence of features of vengeance and premeditation that attend the comparable of cases where children are victims of murder and the sentencing judge erred by aggravating the sentence upon a finding of the absence of remorse.
Mr Hallowes told the court Hicks would be 51 years old when eligible for release and while the offending was grave, his age at the time of the killing should still be taken into consideration when sentencing.
He argued a non-parole period of 32 years would induce a feeling of ‘utter helplessness’ and meant Hicks would ‘spend practically no time as an adult as a free man’.
In further submissions to the court, Hicks’ defence team said their client was ‘profoundly brutalised by the adult world’, having emerged from an unstable family life into an ‘adolescent world of chaos, drug use and sexual exploitation and abuse’.
Mr Hallowes said the murder was spontaneous and Hicks did not set out that night intending to commit a heinous crime, ‘to commit a killing of this nature’.
He said 'we concede it's not one blow ... but what we say is it's still in a different category' to a planned killing.
The suggestion was questioned by Justice David Ashley, who asked ‘are you trying to say this killing is less heinous than a killing which is planned?’.
“Can it really be said one is worse than the other?”
In submissions to the court, Hicks’ defence team stated that during the plea hearing, cases involving the murder of a child were tendered as comparisons for the court to measure their client’s offending against relevant sentencing practices. The submission reads: ‘it was submitted that many of the cases where children are killed are distinguished by circumstances absent in the applicant’s case: revenge against perceived wrongs by a spouse (generally a wife); and the breach of that most fundamental social duty, that of a parent to protect a child. It is submitted that each of those features make those cases more heinous than the instant case. In comparable cases, the perpetrators were largely mature men, intent on revenge and substantially lacking the profound social burdens imposed on the applicant in this case.
Mr Hallowes also argued that Justice Kaye’s observation Hicks showed no remorse aggravated the sentence.
Justice Kaye stated during sentencing that he observed Hicks during the trial and at no stage could he detect any sign of remorse.
“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,’’ he said.
In its submission to the Court of Appeal, Hicks’ defence said had that been raised during the plea hearing, it would have been addressed.
The submission stated: ‘Counsel for the applicant did not make any submission regarding remorse on the plea. No such finding was urged on the Court. Nor was the issue of the demeanor of the accused in the dock raised with counsel on the plea. Had it been raised, there may have been appropriate explanations given for the various affects observed over the course of the trial. For example, evidence was put on the plea that the applicant was taking various forms of psychiatric medication during the case.’
In responding to the application, barrister Susan Borg on behalf of the Crown said justice required a substantial non-parole jail period for the brutal murder of a defenceless baby.
Ms Borg told the court that when comparing the killing of baby Zayden Veal-Whitting to other child murders, this case was different.
Ms Borg said cases such as that of Robert Farquharson, who was twice found guilty of murdering his three sons by driving them into a dam, were fuelled by anger, betrayal and feelings of entitlement – but this was not the case with Hicks.
"What we have here ... leaves you cold, there is no explanation,’’ she said.
Ms Borg said Hicks was young at the time of the offence, but his youth had to give way to the other sentencing considerations, including his prior criminal history, poor prospects for rehabilitation and that he was a danger to the community.
She said when confronted by a child that was no threat to him at all, Hicks used brutal force which resulted in his death.
She said Hicks had already found $2000 cash before going into the baby's room and unplugging a baby monitor, so it was "unnecessary to hit him and to hit him 32 times" particularly given he had earlier fled when confronted by an adult at another property.
The Crown’s submission to the court stated “the applicant’s submissions about the absence of premeditation and revenge as a motive do not assist him. This crime is placed (properly) within the worst category of offences of murder for reasons other than premeditation and revenge. He took the baton for the purpose of threatening violence or engaging in violence with it (in course of committing burglary). The murder was committed against the most innocent and vulnerable of victims. The murder was motivated by unmitigated evil or by pure self–interest (so as to effect his escape from a crime scene). On any view, there were no extenuating circumstances. In any event, little is to be gained by comparing worst case examples with other worse case examples. What matters is this case falls within the worst case category, and each element of the sentence imposed (head and minimum) must reflect this’’.
Ms Borg also said the defence argument that the sentencing judge erred by aggravating the sentence upon a finding of the absence of remorse should be dismissed.
She said the sentencing judge’s comments in relation to remorse needed to be read within the context of the sentencing remarks as a whole.
She further added the fact Hicks sought to blame innocent people for the crime, including his twin brother, also suggested he showed no remorse.
Supreme Court justices Simon Whelan, David Ashley and David Beach will announce tomorrow morning whether the appeal has been granted.