STATE OF TASMANIA v WAYNE KEITH HERLIHY 1 OCTOBER 2020
COMMENTS ON PASSING SENTENCE PEARCE J
Wayne Herlihy you plead guilty to one count of stealing. Following a trial you were found guilty by the jury of aggravated burglary, acquitted of aggravated armed robbery but found guilty of the alternative charge of aggravated robbery. Subject to the verdicts it is for me to determine the facts for sentence. Some of the facts follow from the verdicts.
In mid-2018 you were working as a taxi driver. In the course of doing so you drove Mr Peck to his home in South Launceston. He was then aged 74 and lived alone. He informed you that he had a problem with mould at his home, and you offered your services as a cleaner. You attended his home the following day, which was in the first few days of July. While you were there you stole a roll of cash, just over $2,000, which Mr Peck had left lying on his bed. He discovered the theft when you temporarily left the house. He removed your equipment and, when you returned, he asked you to leave.
In May 2019 your niece Kylie Herlihy was living with you. You told her about Mr Peck and your belief that he had money. A few days before 25 May 2019 you showed her, and her associates, where his house was. During the early afternoon of 25 May 2019, Kylie Herlihy and her son’s friend Harley Sturzaker, with two others, went to Mr Peck’s home. Mr Sturzaker and at least one other person went inside looking for money. Mr Peck confronted them. By then he was aged 75. They left with only stolen prescription medication. Later that day you were made aware of what had taken place. You were also made aware that they believed that Mr Peck had money they did not find and that they had resolved to go back. You were asked to drive. In your vehicle you took Ms Herlihy to pick up Mr Sturzaker and then to Mr Peck’s home. You took your two children in the car. You were aware that Mr Sturzaker had brought a backpack and a balaclava. After you parked you released the boot so Mr Sturzaker had access to his backpack, and you saw him and Ms Herlihy go to Mr Peck’s home. Mr Sturzaker carried a firearm, likely a sawn off shotgun. He wore the balaclava he had taken and Ms Herlihy drew in the hood of her jumper. It necessarily follows from the verdicts, and I am satisfied beyond reasonable doubt, that the jury found that you drove them for the purpose of entering the home, stealing from Mr Peck and that they were prepared to at least threaten force to overcome resistance to the stealing.
In the house Mr Peck was in the lounge room. Mr Sturzaker burst in demanding money. In the course of the exchange he struck Mr Peck to the head with the barrel of the shotgun, causing a serious laceration. When Mr Peck went to the ground he was kicked to his chest and hand. Mr Sturzaker and Ms Herlihy found and stole two wallets, the cash inside them and a container of coins. After they emerged from the house they replaced items into the boot and you then drove them away. On their return to the car it was immediately apparent that something serious had happened because Ms Herlihy had blood on her hands, and she told you that Mr Peck had been seriously hurt.
It follows from the verdict, and the manner in which the prosecution case was presented, that the jury was not satisfied beyond reasonable doubt that you knew that Mr Sturzaker took a firearm into the house. Nevertheless I am satisfied beyond reasonable doubt, by inference from all of the evidence, that you appreciated that actual, not just threatened, force would be used if necessary. You are not to be sentenced on the basis that either of the co-offenders was armed. However, although you were not aware that Mr Sturzaker had a gun, you knew that others had been to the house earlier and had been chased away by Mr Peck, that Mr Peck was likely to be inside and may well resist, that Mr Sturzaker and Ms Herlihy were both going in wearing disguises and would confront him together, and that at least Ms Herlihy was desperate for money for drugs. I am satisfied that the level of violence inflicted by Mr Sturzaker went far beyond what you actually contemplated, but the possibility of injury to an elderly and vulnerable man, living alone, being robbed for money for drugs, was obvious to any reasonable person.
You are now aged 52. You receive a disability pension which your counsel asserted was from low cognitive ability, but have held occasional employment including as a taxi driver. It is not asserted you have any condition or impairment which reduces your culpability. You have two children, one of whom lived with you before you went into custody. You had a difficult upbringing as a ward of the State in Victoria before coming to Tasmania as an adult in 1982. You have convictions for dishonesty but apart from two common assaults in 2009 and 2018 respectively, you have no prior convictions for violence, particularly violence related to dishonesty. In 2015 you were given a wholly suspended four month sentence for a series of dishonesty offences committed in April 2014. A 28 day wholly suspended sentence was imposed in September 2019 for stealing and credit card dishonesty. They are not prior convictions for sentencing purposes, but the robbery was committed not long after those instances of dishonesty. It is an aggravating factor for the stealing in 2018 that you were invited into the home to perform work on Mr Peck’s behalf and you therefor breached his trust. I am satisfied that you were involved in the identification of Mr Peck as a potential target for your co-offenders. You originally told Ms Herlihy about him and then drove them past the house a few days earlier. However, your immediate involvement in the robbery was not planned until you were asked by Ms Herlihy to be driver on that day. I regard your culpability as less that the other two offenders. Your record is not as bad as theirs, and they both admitted guilt of the more serious crime of which you were acquitted. They deserved much greater punishment. Both were sentenced to imprisonment for four years and three months. You are not entitled to the mitigation a plea of guilty would have attracted. You were brought into custody on 21 September 2020 and so the term I am about to impose will commence then.
Wayne Herlihy, you are convicted of stealing, aggravated burglary and aggravated robbery. I make a compensation order in favour of Ronald Peck in a sum to be determined. You are sentenced to imprisonment for two years and three months from 21 September 2020. I order that you not be eligible for parole until you have served half of that sentence.