HARLEY Hicks will spend at least 32 years behind bars after the Supreme Court, Court of Appeal was 'unable to see any flaw' in the sentence handed down to him for the brutal murder of a Bendigo baby.
Hicks sought leave to appeal the 32 year non-parole period set down with his life sentence for the murder of 10-month-old Zayden Veal-Whitting.
Hicks bludgeoned Zayden to death with a home-made baton whilst committing a series of burglaries in the Long Gully area overnight on June 14/15, 2012.
He pleaded not guilty to the baby's death but a supreme court jury found him guilty of murder after a five-week trial last year.
In sentencing, Justice Stephen Kaye said said the killing was “totally and utterly evil’’ and "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. ''
Hicks applied to appeal sentence because of his age at the time of the killing (19), the risks to him while in custody; his likely status as a protected prisoner; the chaotic, abusive and traumatic background against which his personality was wrought and that the chaotic and abusive forces that shaped his character were visited upon him by the adult world and not of his making;
Hicks also argued the killing was instead spontaneous and impulsive and there was an absence of features of vengeance and premeditation such as those in other cases where children were victims of murder.
The second ground for his appeal was that the sentencing judge erred by aggravating the sentence upon a finding of the absence of remorse.
Supreme Court of Appeal justices David Ashley, Simon Whelan and David Beach said ground two was not reasonably argued.
In relation to ground one of the appeal, the Court of Appeal noted the 'judge found this case to be very difficult from a sentencing standpoint'.
It was noted 'there was not doubt' the judge employed the first five of the seven points of ground one to Hicks' advantage when sentencing.
In relation to the final two points, the court noted that Hicks' legal team argued the murder was 'not as grave as the worst murder of the worst kind' and their client deserved a lesser sentence than those where parents had killed their own children.
Justice Ashley said 'in all the circumstances, we consider that his Honour was not obliged to treat this particular murder as being less heinous than the killing of a child by a parent'.
"In short, this was a killing of the gravest kind, by a man with a prior criminal history of some relevance, who had little prospects of rehabilitation, who was not remorseful (having a lack of compassion and empathy for others) and from whom the community required protection,'' he read from the judgement.
"On the other side of the ledger, most importantly he was young at time of offending and young at time of sentence.
"His antisocial personality had been influenced by matters beyond his control. Imprisonment would be more onerous for him than for other prisoners.
"To these circumstances were to be added such limited assistance as ‘comparable cases’ provided.
"There is no doubt that the judge found this case to be very difficult from a sentencing standpoint. He said as much.
"Obviously, it was a grave step to impose life imprisonment on a man so young, and then to fix a long non-parole period.
"But we are unable to see any flaw in his Honour’s synthesis of the relevant circumstances.''
Speaking outside court, Zayden's mother Casey Veal said the court made the right decision in refusing the application by her son's killer to appeal his sentence, but no amount of time behind bars would bring closure for her family.
Ms Veal said while she was relieved at today's decision, nothing would ever bring her baby boy back.
"It helps us to know .... that it is done, now ... but it doesn't really help us very much, no length of time will.''
Ms Veal said she was pleased the age of the killer at the time of the murder was not taken into account by the court.
"We were a little bit worried that maybe his age would come into consideration," she said.
"Zayden was an infant, (who) never learnt to walk, let alone have a first birthday ... he (Hicks) is crying about never being accepted into society as an adult, but my son never got to be an adult.
"His older brother is going to grow up to be an adult and he will have his own problems adjusting because of his own issues missing his little brother.
"We think this decision is right and we hope our family will become normal again and try and focus on Xavier, and his schooling.
"Hopefully this can be behind us and we can focus on the positives of Zayden.''
HICKS LOSES BID TO APPEAL SENTENCE, TODAY'S LIVE COVERAGE: Gallery, video.