STATE OF TASMANIA v JAKE DOUGLAS HERLIHY 24 FEBRUARY 2020
COMMENTS ON PASSING SENTENCE PEARCE J
Jake Herlihy, you plead guilty to aggravated armed robbery and committing an unlawful act intended to cause bodily harm. The crimes were committed by you in company with three other men at a unit in Waverley overnight between 9 and 10 January 2018 against the complainant, a male then aged 47. At the time, you were aged 18. The other men were respectively aged 25, 24 and 23. The youngest, who I will refer to as W, was an acquaintance of yours and he lived in that unit. You did not know the other two offenders, one of whom was Clinton Wilson, but you had met the complainant before. You went to the unit on that night to socialise and use drugs. Your girlfriend was also present. You had been at the unit for some time before Mr Wilson and another man, who I will refer to as G, arrived. You were told of a plan, first thought of by G and W a couple of days earlier, to lure the complainant to the unit to rob him of money and drugs. Once you learned of the plan it was discussed between the group and you joined in the intention to use force and intimidation against the man to obtain the money and drugs and you actively assisted in the planning.
At about 11pm, W sent a text to the complainant inviting him to the unit. He arrived not long afterwards with a large amount of crystalline methylamphetamine and several thousand dollars in cash. He was set upon by the other three men and subjected to a prolonged, vicious and brutal beating. He was punched to the face, head and body. When he fell to the floor he was repeatedly struck with punches, elbows and a wooden chair leg. Electrical tape was wound around his neck and face. As a result of the beating much blood was spread around the unit, including on the floor and walls of the lounge room and kitchen. Blood spatter was later found on the chair leg which had been used as a weapon. You were present in the room while all of this occurred. Although you had not participated in the direct infliction of violence before then, you, as the complainant lay on the ground already severely injured, approached him and kicked his face with such force as to render him unconscious.
After the violence stopped the complainant lay unconscious and bleeding on the floor. You helped drag him out of the unit whereupon he was loaded into the tray of the utility he had driven there. Mr Wilson drove him away. G gathered up the money and drugs. He gave some cash to you. When Mr Wilson returned without the complainant, he and G left. You remained at the unit to help your girlfriend clean up, as best you could, the large amount of blood on the floor and walls of the kitchen and lounge using hot water, sponges, towels and bleach. You then left in a taxi, with your girlfriend and W, and went to your mother’s house. You took with you a plastic bag containing the things you had used to clean, as well as some other blood stained items including shoes, a roll of electrical tape, and the chair leg which had been the weapon. They were put in a rubbish bin.
At about 12.30 am, the complainant was found by the road where he had been abandoned by Mr Wilson. That led the police to evidence, including CCTV, which quickly identified you and the other offenders, and discovery of the weapon and items which had been used to try to clean up the unit. You were arrested two days after the attack on 12 January 2018. All of the others were arrested around the same time. When you were interviewed you admitted your presence at the unit, and your involvement in violence. You told the police you kicked the complainant because you were angry about how he had behaved towards you earlier the same day. You said that, by the time the complainant was dragged from the unit, you thought he may die. You admitted that you were given $400 of the about $2,000 which was stolen, which you quickly spent on poker machines.
The complainant suffered grievous and life threatening injuries. A description of them is necessary to convey the nature and extent of the crime and its impact. When he was found he still had electrical tape around his neck. He was struggling to breathe. Medical investigation at the hospital disclosed terrible injuries to his head and torso. The following is not a complete list. His face was bleeding, deformed and extensively swollen. The cheekbones, eye sockets and nasal bones were fractured on both sides of his face. His lower jaw was badly fractured and dislocated. In his neck, the hyoid bone and thyroid cartilage were fractured. Air was trapped at the base of his skull which suggested disruption of the trachea and oesophagus. There was a left side rib fracture. His left lung was collapsed, bruised and bleeding internally and blood and air were in the chest cavity. Breathing sounds indicated problems with air flow. He was put on a ventilator with a tracheostomy and a feeding tube. He was kept in an induced coma for five weeks. He spent a further five weeks in recovery before he was capable of being discharged from hospital. The physical and emotional impact of the attack remains profound. His life has been permanently affected. He required extensive surgery to reconstruct his face. The extent of the injuries means, however, that there is continuing serious damage and distortion to the structure, nerves and muscles in his face, mouth and teeth, all which have both a functional and cosmetic effect likely to be lifelong. More painful surgery has been undertaken and more is likely still required. His breathing, and his neck, arms, shoulder and leg are also affected. Although I have no medical evidence of cognitive impairment, he experiences mild memory loss, tinnitus and other neurological symptoms, as well as, understandably, serious psychological effects.
You are now aged 20. To your great misfortune you were, as a child, exposed by your parents to neglect, drug abuse, serious criminality and homelessness. Violence, including domestic violence, was such that it became normalised for you. You began to abuse methylamphetamine from age 15. This led you to, as a youth, commit offences of dishonesty and violence. You were sentenced to probation and community service. To your credit you were, with the assistance of the youth justice division, able to reduce and then cease offending and obtain housing and employment. You have never been sentenced to detention or imprisonment and you had been out of trouble for almost two years when this crime was committed. However, in 2017, for a reason you are unable to explain, you fell into bad company and resumed use of methylamphetamine. There has been further offending since this crime. In March 2019 you pleaded guilty to a common assault committed on 2 March 2018 for which you were fined. In November 2019 you were made subject to a community correction order for two counts of stealing and two counts of aggravated burglary. They are not prior convictions for sentencing purposes but are relevant to my assessment of the chance of your rehabilitation and the degree of your remorse.
You were jointly charged with Clinton Wilson. He was sentenced by me to imprisonment for five years and six months. I indicated that he would have been sentenced to imprisonment for seven years, but his sentence was discounted, and earlier parole allowed, for his plea of guilty and for his indication that he will give evidence in both of the trials of G and W. The comments I made when sentencing him also apply to you, with at least the same force because of your age and your role in the crimes. You have said that you are now sorry for what you did. You have pleaded guilty. The admissions you made to the police made proof of the charge against you easier. You were initially charged with attempted murder. In May 2019 an indictment containing the charges you now plead guilty to was filed. The plea of guilty to those charges came within a few months. Your plea came after Mr Wilson’s, but not to the extent that it makes much material difference. It indicates a willingness to accept responsibility and to facilitate justice and justifies reduction in sentence of 10 per cent. The other factor in your favour is that you have agreed to give evidence in each of the trials of the other assailants. Present indications are that two trials are necessary. The State accepts that the evidence will be of some value, although sufficient other evidence of guilt seems to me to exist. Nevertheless, it is the policy of the criminal law to allow a reduction in sentence in return for giving evidence in relation to co-offenders. That is so for many reasons, including that it is inherently right to assist in the prosecution of offenders guilty of such serious crimes as this, it indicates some contrition and insight on your part, and the indication of a willingness to give evidence is likely to make your life more difficult both in prison and possibly after your release. You are scared of what might happen. If you fail to co-operate as you have promised, the sentence may be reviewed and increased on appeal. For that reason I specify the discount at a further 10 per cent.
Assuming all other factors to be the same, your sentence, like that of Mr Wilson, should be less than the ringleaders. As to parity with Mr Wilson, he had other sentences to serve. Your record is less serious than his and you have demonstrated a capacity for reform beyond statements of intention. I accept that your youth is also relevant. The law generally extends lenience to young offenders to allow for immaturity, lack of judgment, the greater potential for rehabilitation and avoidance of the corrupting influence of prison. Those considerations are relevant but are of much less significance than they would have been with a less serious offence. These were grave crimes. It is a serious example of both crimes although they arise from the same course of conduct. The main criminality arises from the level of violence involved. The robbery, including the violence intended to facilitate it, was premediated. You and the others, motivated only by money and drugs, lured the complainant into a trap and then confronted him with the combined force of four men. He was subjected to a merciless attack, including with a weapon, accompanied by an intention to inflict serious injury. As a result of your participation you are criminally responsible for all of the violence, whether directly inflicted by you or not. The plan was not your idea and your premeditation was formed only on that night, but you participated in it. You joined the plan, encouraged the others and shared the joint intention to injure. It is relevant to your culpability that you were directly responsible only for the kick. I accept that, to some extent, you were carried along by the acts and influence of the older participants. However the kick you inflicted was a savage and cowardly act, done when the complainant was already seriously injured and defenceless on the ground, and after you had seen the violence to which he had already been subjected. The location of the blow you inflicted coincides with the location of some of the complainant’s more serious injuries. You had used methylamphetamine but that is not mitigating. There is a strong need to punish you, condemn your conduct, and to make clear to you and others, especially other young men, the consequences of serious violence in the hope of preventing it from happening in the future.
But for your plea and your willingness to give evidence I would have sentenced you to imprisonment for six years. I have reduced the head sentence by something just over 20 per cent. I also state that those factors influence my decision to allow you the earliest possible eligibility for parole for the head sentence. Of course it will be for the Parole Board to determine any application when it is made. You spent 19 days in custody after your arrest on 12 January 2018. You were taken into custody on 20 February 2020. Those periods of custody are taken into account in fixing the commencement date of your sentence.
Jake Herlihy, you are sentenced to imprisonment for four years and nine months from 1 February 2020. I order that you not be eligible for parole until you have served half of that sentence.