STATE OF TASMANIA v KYLIE MAREE HERLIHY 17 DECEMBER 2019
COMMENTS ON PASSING SENTENCE PEARCE J
Kylie Herlihy, you plead guilty to one count of stealing, two counts of aggravated burglary and one count of aggravated armed robbery. In early May this year you became aware, through an acquaintance, that the complainant was an elderly man living alone in a unit in South Launceston. Your acquaintance had already stolen cash from the complainant’s unit when cleaning for him. This man told you that the complainant had a large amount of cash and thought he would be an easy target. You decided to rob him of the money you thought he had. Around lunchtime on Saturday 25 May 2019 you went to the house with a group of four young men who joined in the plan. The complainant was home alone. You and three of the men entered through the unlocked back door and started looking for money to steal. When he was confronted he threatened one of the intruders with a metal pole, whereupon you all left, stealing only prescription medication. You knew that one of the young men had taken a sawn off double barrel shot gun in his backpack but it was not produced and the complainant was not then made aware of it.
That evening, not content with the result of the earlier burglary, you resolved to go back. You drove back to the unit with one of the young men and a different older man; the one who had originally told you about the complainant. The young man again took a sawn off double barrel shotgun, which was loaded. When you arrived the young man kicked open the back door. He went inside and you followed. The older man stayed outside in the car as driver. The young man had some sort of pink cover on his head and your face was partially covered with your hooded jumper. Again, the complainant was home alone. The young man produced the shotgun, pointed it at the complainant and demanded money. When the complainant did not answer, the young man struck him to his head with the barrel of the gun with such force as to knock him from his chair onto the ground. While he was on the ground he was struck again to his head at least once with the barrel of the gun. One of the blows caused a serious laceration to the top of his head. While this was happening you searched the unit. You then took the gun and stood over the complainant while your associate searched. When he returned he took back the gun and kicked the complainant while demanding to be told where the money was. The complainant was bleeding from the head and struggling to stand up. You then left, taking two wallets containing cash, about $450 in coins and some foreign currency. More prescription medication was taken. The takings were divided between the three offenders.
Enquiries following discovery of forensic evidence at the unit led to identification of the offenders and you were arrested three days later on 28 May 2019. Over the course of two police interviews you eventually admitted much of what you had done. One of the stolen wallets and some of the medication was found at your home.
The complainant suffered a laceration to his forehead, a wound to his scalp which required about 10 staples to close, a subdural haematoma, painful swelling and bruising to his left hand and chest wall. He was in hospital for about five days but he has taken some time to physically recover since his discharge and has ongoing problems with balance. There has been a strong psychological impact. He no longer feels safe in the home he has lived in for 27 years.
You are now aged 37. You have had a very difficult life. You suffered physical and sexual abuse and neglect as a child and were taken into State care when aged 11. You lived in many different foster homes and were the subject of further serious abuse. You left school at age 14 and have limited literacy. You have never held employment. You had the first of eight children at age 17. They are now aged between 20 and two. Your own relationship, although it lasted 17 years until 2015, was abusive and violent. You have been addicted to methylamphetamine for many years. At one stage you owned a home at Beaconsfield which you partly funded with compensation for the abuse you have suffered, but you lost that home through financial difficulty. You think that you suffer from anxiety and depression but there is no medical evidence of that, or of a connection between those conditions and these crimes. There can be no reduction in sentence on that account. You have prior convictions for both dishonesty and violence. In 2009 and 2011 you were given short suspended sentences for common assault. Between then and 2016 your record is for driving offences and minor drug offending. However on 19 February 2016 you were sentenced to imprisonment for eight months, more than five months of which was suspended, for a large number of driving, bail and dishonesty offences, and one count of common assault. You breached that sentence by driving while disqualified, but again your sentences were suspended. On 1 August 2019 you were sentenced to a total effective term of imprisonment for three months and six weeks from 29 May 2019 for offending in 2018 and early 2019 including dishonesty, driving offences, and one count of common assault. They are not prior convictions for sentencing purposes, but it is aggravating that you committed these crimes while on bail for those offences. You were entitled to be released having completed that sentence on 9 October 2019 and so the sentence I impose will commence then.
You have not committed a crime as serious as this before. You are entitled to mitigation from your plea of guilty. It facilitates justice and saves the complainant the additional trauma of having to recall and give evidence about these events. It is also in your favour that you made some admissions to the police. I accept that since you have been in prison you have realised how your conduct has seriously affected the life of your victim and are sorry for that. However your claim to remorse is reduced by your decision to return to the unit after the first burglary.
You are to be pitied for the factors which have impacted so badly on your life. The cycle of abuse, disadvantage and drug and alcohol addiction is very difficult to break. But none of that excuses crimes of this seriousness. The crime of aggravated armed robbery is always serious, but when the crime is committed during the course of a home invasion it is particularly grave. An unsuspecting, vulnerable and elderly man was targeted twice on the same day. You initiated and planned the crimes and enlisted others to help. You were affected by alcohol and drugs. That does not reduce the seriousness of what you did to any extent. You committed two separate criminal acts, albeit on the same day, both of which involved the complainant being confronted by multiple intruders in his own home. Both occasions must have been terrifying and traumatic, and on the second occasion he was subject to a savage beating which resulted in serious injury. The use of disguises, no doubt, added to his terror. You were not directly responsible for the violence but you share the blame and responsibility for it. The plan to rob him was yours and you joined in the intention to use a loaded firearm to threaten him. The use of a loaded firearm to threaten significantly aggravates the seriousness of the robbery. The risk of even worse disaster was significant. It may not have been your intention to use the firearm to beat the man, but the likelihood of actual violence of some type was an obvious likely consequence of your plan, and your involvement makes your responsibility for it plain. You actively participated in the robbery, including by standing over him with the gun, after he had already been struck with it twice and badly injured. You and the other men were in this together and you are responsible for all of what happened. But for your plea of guilty I would have sentenced you to imprisonment for five years. Because of the plea I will reduce the sentence and allow the earliest possible eligibility for parole.
Kylie Herlihy, you are convicted on counts 2 to 5 inclusive on the indictment. I make a compensation order in favour of the complainant, whose name will be specified in the order, and adjourn the further terms of that order to a date to be fixed. You are sentenced to imprisonment for four years and three months from 9 October 2019. I order that you not be eligible for parole until you have served half of that sentence.