Director of Public Prosecutions v Harkin
[2023] VCC 1417
•14 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
criminal JURISDICTION
CR 23-00374
Indictment No. N11982795
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIERAN HARKIN |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 June 2023, 14 August 2023 | |
DATE OF SENTENCE: | 14 August 2023 | |
CASE MAY BE CITED AS: | DPP v Harkin | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1417 | |
REASONS FOR SENTENCE
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Catchwords: attempted aggravated carjacking (bus), threat to kill, criminal damage; common assault. Attack on bus driver. 39 years of age at time of sentence. Some prior criminal history. Early plea - Worboyes v The Queen [2021] VSCA 169.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. McCulloch | Office of Public Prosecutions |
| For the Accused | Ms O. Thompson | Menoz Bowler |
HIS HONOUR:
1 Kieran Harkin, you have pleaded guilty to attempted aggravated carjacking, threat to kill, criminal damage and common assault. The maximum penalties are correctly set out in the opening. Owing to this being an attempted aggravated carjacking, the mandatory provisions with the Sentencing Act 1991 do not apply to this sentencing task.
2 You are 39 years of age and have a prior criminal history of some relevance to my task.
Facts
3 On 21 June the prosecutor, Mr McCulloch, opened this case to me in accordance with the written summary which bore the date 16 June 2023 but had actually been filed on 26 May of this year. The later date was apparently some automatic date which was generated when the summary was printed out. In any event, that summary was marked as Exhibit A.
4 Your counsel, Ms Thompson, told me it was an agreed summary. I see no need then to restate the agreed facts in any great detail now as I will sentence pursuant to those agreed facts, in conjunction with the footage played in the course of the plea.
5 I will provide then only a brief summary of your offending.
6 Your victim is 30-year-old Murtaza Guli. He was a bus driver, and as such he was brought into contact with members of the public – that is just unavoidable. He will not forget the day that he came into contact with you, that is for sure. You boarded his bus at around 6:26pm on the day in question, that day being 12 September of 2022. It was a route 708 bus, whatever you may think or say. You wanted a different numbered bus. You were eating food and talking to yourself as you sat at the rear. You were also drinking alcohol on the bus. Within a short space of time, you started yelling out and abusing the driver. The bus was not going where you wanted it to but purely because it was not the bus you should have been on.
7 He became stationary in the right-hand turning lane on the Nepean Highway.
8 You abused him roundly, including with some foul language, and you walked down the bus and positioned yourself outside his protected cabin area. You were yelling and screaming 'where is the station'. Your interaction was filmed by one of the passengers, who happened to be unfortunate enough to be on this bus. You began to attack the protective partition and you hip and shouldered it. You reached around trying to hit your victim. There is no point in my setting out all that you did on that bus, the summary does that, and in addition, of course, there is the CCTV footage which speaks for itself. It does what words on a page might struggle to do, that is, provide a real understanding of the mood and the nature of your crimes. It was obviously very frightening, more so as you seemingly were just not rational. You were behaving without any restraint at all, attacking his cabin door with gusto and reaching around and trying to damage the terminal. The driver tried to placate you but with no success at all. He opened his window and you were threatening to beat him up. It was not as politely worded as that. You roamed around the bus and you came back to the front area and demanded the keys and then ripped the control stalk from the console. You demanded the keys and grabbed at the protective barrier and screamed out 'I’m going to murder you cunt, give me the keys'. You reached around with your arm, and in doing so, opened the door and then got into his protected cabin area and he tried to jump out the driver’s side window in an endeavour to avoid you. That was a pretty wise move, given your state, but it was one that led to his injury. He got caught by his foot. You pushed him out causing his shoe to come off. Your victim then fell from some height onto the road surface. I should say, it was a busy hour out on the Nepean Highway.
9 You took control of the bus. Two schoolgirls ran from that bus. They were trying to avoid you and they exited out onto the right running lane of the highway in an 80kph zone. You sat in the driver's seat and looked for the keys. The driver had taken them. You ripped the indicator stalk off and tried to unlock the handbrake and pulled at the steering wheel.
10 You left the cabin and then the bus, and the victim saw you and took some photographs of you. You returned to him and assaulted him physically and you both fell to the ground. You got up and you punched and kicked your victim who was on the ground on his back trying to protect himself from your blows. At one point you dragged him from the footpath onto the Nepean Highway and then hit him with his own shoe. A jogger, who happened to be running in that area, intervened and dragged you away and the driver then had a chance to run to safety across the Nepean Highway. This whole incident lasted about six minutes. It was terrifying for your victim as you simply could not be reasoned with.
11 Police arrived and you were arrested at the Cheltenham railway station at 7:12pm. You were taken back to the Moorabbin Police Station and really the less said about your interview the better. You gave a false, or at least inaccurate, account of the night's events and complained that the driver had hit you first and had taken the wrong route. You were asserting self-defence and provocation and denied the allegations. You scoffed at the suggestion of any criminal conduct and said you would 'laugh at the Judge the whole time through this one'. See Question 258.
12 The police were pretty tolerant of you as you came perilously close to actually threatening the interviewing members as well. See Questions 346-349. It really was a pretty extraordinary interview. You were charged and you have remained in custody since.
13 You victim was taken by ambulance to hospital and his injuries treated and photographed. He sustained the injuries described at Paragraph 40.
14 The agreed summary sets out the chronology of the matter before the court. I must add into that chronology the adjournment from the plea date on 21 June when I called for a Forensicare report. The nature of the attack, your response in the interview, as well as your account given to Mr Simmons, were worrying. Also, your strange conduct in the course of the plea providing further evidence of the fact that you were still harbouring those odd views expressed in the interview that you had done nothing wrong. I raised my concerns with your counsel and she confirmed that that was the position. There was a palpable strangeness to the whole business and Mr Simmons' report provided no clues to me at all. I told your counsel that I had in mind calling for a Forensicare report. I stood the matter down and your counsel spoke to you at length and advised me that you would not cooperate if I did that. Your counsel then completed her plea. I chose not to act on your first refusal and gave you further time over lunch and I was then told that you would in fact co-operate if I called for a report. So I did just that. I called for that report. I have received it and it really does not help you or me.
15 So much then for what is only a brief summary of your offending. I will sentence pursuant to the far more detailed agreed statement which was marked as Exhibit A on the plea. Also, the footage which shows just how extraordinary your conduct was. There are also some photographs attached to the depositional material.
Victim impact material
16 Your direct victim has made a victim impact statement, marked as Exhibit C. There is also a letter from his physiotherapist. The impact has been very sizeable indeed, as he makes clear. The impact statement was read aloud and I do not see any need to repeat now all that was said within it. Your crimes have changed his life for the worse. He has trouble sleeping and feels anxious and distressed. He has received counselling and been prescribed medication including anti-depressants and sleeping tablets. He sustained physical injuries and had not returned to work since the incident, at least as at the date of the impact statement which was mid‑June. There has been large financial impact as well. The social impact has also been sizable. Your crimes have greatly impacted upon a man who was merely going about his job. I take into account the sizeable impact in this case.
In mitigation
17 I turn then to consider the plea conducted on your behalf by Ms Thompson. She relied upon a written outline of submissions dated 19 June 2023 and a brief report from a psychologist, Mr Warren Simmons. That report was of very little value which was yet another reason for me to call for a Forensicare report.
18 Ms Thompson placed before me some details of your personal background, including your family, educational, work, relationship and drug history. She made some submissions about the relative gravity of the offending and dealt with some of your past offending. She made some submissions as to the relevant sentencing purposes as well as to your rehabilitative prospects, conceding they were not particularly strong.
19 There were very few matters in mitigation here. That is just a fact.
20 In what was a realistic and economical plea conducted on your behalf, she relied mainly upon the following matter in mitigation:
· Your early guilty plea in the course of the global pandemic.
She conceded that a prison term with a non-parole period was warranted here, although she was arguing for a decent gap between your head sentence and non-parole period.
Prosecution
21 The prosecutor, Mr McCulloch, had prepared some detailed written sentencing submissions which were in no way controversial. They were marked as Exhibit D. The prosecutor took me to the large impact and to the objective factors of seriousness including the vulnerability of your victim. There was strong violence and foul language and threats and over what? It was all in a public place and it was witnessed by other passengers. Some of those exited the bus in peak hour onto the Nepean Highway. That was to get away from you, Mr Harkin. You then assaulted your victim outside the bus in a serious fashion. The Crown took me to the relevant sentencing purposes here. They provided a handful of relevant past sentences. They conceded that there were some matters in mitigation but nothing at all to explain your serious criminal conduct. The prosecution submitted that the only available sentence here was a head sentence with a non-parole period. So much had already been conceded by your counsel back on the day of the plea and again here today.
22 I am not bound by the submissions made by either party as to the sentence required in this case and what I must do is exercise my own sentencing discretion.
Background
23 I will turn briefly to your background before dealing with the various submissions made by the parties, and I will do that briefly as I have no reason to doubt the material placed before me. It is set out in some detail in Mr Simmons' report, as well as in the recently received Forensicare report.
24 You are 39 years of age. You are one of four children born to your parents who are both still alive. You had a good upbringing and you were educated to Year 10. You have had a reasonable work history, you think working 80% of the time, not the 50% quoted in the report and in the written submissions. Your last job was as a forklift driver but I was told that prior to being imprisoned, you had been out of work for some years. You in fact had sustained a back injury some years back as a 21-year-old and that has been problematic. You have no children and you have had very few close relationships. Drugs have been a major problem for a number of years including the use of ice. I was told that you had lost your car and your home in the lead-up to this offending and so you were not in a good frame of mind.
25 You have a criminal history of at least some relevance to my task. There is no point in my conducting a full audit of that history. Your counsel conceded that it has some relevance to my task. It is not the longest of histories and it is probably not as long as it looks, as there is a decent level of duplication with breaches and also some fine default community corrections orders. Nor is there anything as serious as the attempted carjacking within that past criminal history. However, you have been given a number of chances over the years and you have just not taken them. There is a range of offending including dishonesty, driving, drug and weapons offences. There are a number of drive whilst disqualified offences, as well as appearances for recklessly causing injury and criminal damage. I was told that you do not remember the recklessly causing injury. You have contravened virtually every community corrections order that you have been placed on, and there have been many of those. Your counsel submits that the breaches were by offence and not non-compliance. I am not sure if that is so or not, and it actually does not matter. You have breached them one way or another.
26 You have received some short terms of imprisonment to serve, as well as a handful of suspended sentences and one six-month term of imprisonment to actually serve.
27 You do not fall to be sentenced a second time for any these past matters, I make that very clear. You received those past sentences and you have served them. These matters do not aggravate the matters that I am dealing with but I have to make judgments about your prospects of rehabilitation and the extent of the need to deter you and to protect the community from you. You really have to be deterred. It is obvious that community protection is a matter which looms large in this case.
Guilty plea
28 I turn to the other matters that have been raised on your behalf. Firstly, to your guilty plea. You have taken responsibility for your crimes by pleading guilty and it is apparent it was a plea made at the earliest opportunity.
29 As a result, the time, the cost and the effort of a committal hearing in the Magistrates Court or a trial up in this court has been avoided. Witnesses have not been required to give evidence. Giving evidence can be a stressful experience. No doubt it would have been a stressful experience for poor Mr Guli to be called and to have to relive these events and be questioned about them. He, and other witnesses, including some children on that bus, have been spared that experience by your stance.
30 You have facilitated the course of justice in these various ways and you must be rewarded for doing so.
31 Your guilty plea is worthy of extra weight for the various reasons set out in the Court of Appeal decision of Worboyes v The Queen.[1] A large backlog of cases has arisen in the course of the global pandemic. Your case was never part of that backlog because it settled so swiftly. So I take these various matters into account in mitigation.
Remorse
[1]Worboyes v The Queen [2021] VSCA 169
32 Your counsel did not suggest that there was remorse present in this case. She has specifically conceded that there was not. No doubt that was in recognition of some of the significant impediments thrown up by your interview, but more significantly, what you said to Mr Simmons and your instructions to her. Also, your conduct in the course of the plea which indicated that you felt you had done nothing wrong. There really was no remorse on display here which was another reason why I contemplated calling for a Forensicare report, as surely no right-thinking person looking at the footage could really be anything other than ashamed or aghast at their behaviour and yet you very evidently were not.
33 Unfortunately, the Forensicare report maintains this quite odd position.
34 Anyway, the fact is there is no remorse here. That is troubling as we are a long time removed from the night in question. It is hard for me to know what was going on in your head on the night. You certainly had been drinking but that cannot fully explain the extravagance of your conduct. Furthermore, you say you were not drunk. You say drugs had no role to play at all. Whatever was going on, it is perhaps unsurprising that you were remorseless on the day of the police interview. That was the same man on the same day as the offending seen in that footage, so one could not be very surprised to see oddness in that exchange with the police. But here we are almost a year removed and you still seemingly do not accept that you have done much, if anything, wrong. It is pretty extraordinary. I have your statements to Mr Simmons in April and the more recent statements to the Forensicare psychiatrist in June. I cannot find remorse here as I simply do not see any. Indeed, I am not satisfied that there is any genuine remorse in this case at all, and nor does your counsel suggest that any can be implied from your guilty plea. It is really a very strange situation that I find myself in.
Rehabilitation
35 What then are your prospects or rehabilitation? You are a mature man, not some silly teenage first offender. You have a criminal record of some length and you have continually breached orders that have been designed to rehabilitate you. You have some relevant matters in your past history, though as I have said earlier, nothing of the seriousness of the attempted aggravated carjacking that I am dealing with. You have no remorse. I am told that you have some family support but I have not seen any member of your family. In fact you have banned them from visiting you which is also quite odd. Your father was spoken to as a part of the court ordered assessment and I note his account set out in the Forensicare report at Paragraph 25. You hope to return to live with your parents upon your release and then to obtain employment. It is not entirely clear to me whether returning to your parents is an option open to you.
36 You have long-term issues with a variety of drugs. That casts a real shadow over your future prospects. The report of Mr Simmons does not meaningfully address this offending, your real motivations for it or the risk of reoffence. The report is almost worthless in explaining those matters, though it does at least set out details of your background. You persist in complaining about the driver and his taking the wrong turn as though that somehow would justify your action. It is really quite incredible. As incredible is that Mr Simmons seems to have been provided with a charge sheet and perhaps nothing more. It is clear that he did not see the footage. It is apparent that he did not have the summary and he did not have your criminal record. He did not have the police interview, which surely if he had, might have caused some alarm bells to jangle. He acts on your description of the event which is of course absurd. See Paragraphs 18, 19 and 24 of his report. It follows that he does not have much idea about the true nature of the offending. He does not even seem to understand that you had been sleeping in your car and were homeless at the time. None of this is your fault, by the way, but the court should expect better from an expert who is writing a report such as this. It is why I was uneasy finalising the matter without a sensible report being placed before me. If possible, I wanted to have some better understanding as to your mental health predicament and whether it had played any role in this offending. I really wanted to see if I was missing anything which might provide some mitigation. I could not force you to be assessed, and had you maintained your original stance of refusing to co-operate, I would have been left with no choice but to sentence you on the materials then before me in June. However, you relented. I hoped the report would provide some answers and it really does not.
37 The new report, which I have recently marked as Exhibit E, does not greatly assist me. You still believe you have done nothing wrong. You are still saying some mighty strange things about the conduct, conduct that we can all see on that footage. See Paragraph 10, Paragraphs 43-44 and also Paragraphs 54 and 57 of the fresh report. None of what you say is true or accurate. Even if all of it was true, even if everything you say the bus driver did was true, it would in no way justify or even come close to explaining the actions that you were engaging in.
38 You describe to the Forensicare psychiatrist auditory hallucinations from the age of about 21 and your father talks of your rambling and talking to yourselfyou’re your paranoid and incoherent appearance when you have been using drugs. You do not present as psychotic, but it is certainly possible you have experienced episodes of drug-induced psychosis in the past. You are at a high risk of developing a chronic psychotic condition such as schizophrenia and that is linked to some extent to your substance abuse. However, there is no evidence that any major mental illness contributed to this offending. Dr Trainor says your offending was likely influenced by the use of alcohol and possibly illegal drugs, but I have your account of not using drugs and not being intoxicated.
39 You do have some anti-social personality traits.
40 You have been in custody now for over 330 days and that time and the time ahead may have some role in deterring you into the future.
41 You are working in custody. Your counsel submitted that you had some prospects of rehabilitation. That was about as high as she could put it. I am not surprised. I can really only be quite guarded here. This was quite extraordinary behaviour. It was extravagant offending targeting a totally innocent man who was just doing his job. He was in the right. You were completely in the wrong and yet you still grapple with that proposition despite that footage which should make it clear. You obviously present a sizeable enough risk of future offending. I am prepared to find that you have some prospects of rehabilitation. If you continue to abuse the drug ice, you will have very limited prospects of rehabilitation indeed. You will bring down upon yourself serious life altering mental health issues. You really must stop using illegal drugs upon your release or you are likely to develop schizophrenia. However, I find that you do have some prospects of rehabilitation.
COVID-19
42 I have asked your counsel as to whether she was making any sort of submissions as to the impact of COVID-19 upon your burden as a prisoner, and she is not. That is, no doubt, a recognition of the fact that the restrictions that previously had been in place over the last couple of years have significantly abated. You have only been held in custody since 12 September of last year at a point where virtually all of the harsher restrictions had been relaxed.
43 I am prepared to find – there is no specific submission to this extent but I think it is likely you would have been exposed at least to some occasions of brief lockdown. It is not a matter of any great weight. As I have indicated, the harsh restrictions that had been in place over the last few years have all been swept aside. Visits resumed in March of last year and that was well before you arrived in prison. You refused visitors, for some reason, which is another odd aspect of this case. As to what lies ahead in the future on the pandemic front for prisoners, well that is really impossible for me to know. I suppose there might be the odd quarantine or lockdown. It is really impossible for me to know if there will be any ongoing impact of any significance in your case – there is not at the moment. If that alters the authorities would then be empowered to take that sort of thing into account. I cannot speculate about what lies ahead in the future.
The offences
44 I have already summarised the offending and I will not repeat all that I said. It was unmistakably serious offending to act in the way that you did. There was only one person in the wrong on the night in question. It was you. The conduct had nothing to do with anything Mr Guli had done. Nothing. He just happened to be there. He was doing his job and you were making his job very difficult indeed. He was vulnerable in his position as a driver dealing with members of the public and you sought to place him in fear. For no good reason you abused him and demeaned him and then threatened to kill. Why? Well, it would seem that you boarded the wrong bus. As I say, even if you thought he had driven the wrong route and was a bad driver, how could that truly motivate you to engage in this quite extreme conduct.
45 The impact upon him has been very significant. The attempted aggravated carjacking was accompanied by direct violence as you sought to gain your victim's compliance. He was very scared, who would not be looking at that footage, and he took the view he had no choice but to jump out of his window to avoid you once you had breached his protective enclosure. That made sense as otherwise he would be trapped in that enclosed space with you.
46 The fact there is even a protective enclosure says something about the risks inherent in his job.
47 He fell some distance to the ground and was hurt. All of this was in a public place. There were others on the bus and then out on the street - bystanders on the Nepean Highway, other passengers exiting including the two schoolgirls. No doubt fear was felt not just by your direct victim. The girls escaped off the bus and placed themselves at risk in doing so, as they came out onto a lane of the highway during a busy period. That is not a feature of aggravation and nor am I sentencing you for conduct endangering serious injury or worse. It is just part of the overall context of your offending.
48 Mr Guli was working alone. He had no-one there to assist him. The protective screen would protect him from all but the most determined of assailants. You were unfortunately such a man. The confrontation in the bus lasted some minutes and you had every chance to reconsider your conduct. You then assaulted him once he was off the bus and that was a persistent attack as he was on the ground. You were punching and kicking at him and dragged him onto the Nepean Highway.
49 You essentially were endeavouring to commandeer this bus. It is an extraordinary and quite bizarre instance of the offence but still a serious example of a serious offence. The threat to kill is a serious instance of that offence. Words, deeds and you could not be reasoned with. You were in a rage, and for no rational reason and so you could not be placated. That was the man who was issuing this threat to kill and it was, unsurprisingly, extremely frightening. Your culpability was high and there is no material before me requiring any reduction at all.
Purposes
50 I have to consider a number of purposes of sentencing. One of those purposes is your rehabilitation. I must pay regard to your prospects of rehabilitation. I am prepared to find that you have some prospects of rehabilitation into the future, but as I have said, those prospects are not particularly strong. I can only be quite guarded.
51 I am required to punish you justly and proportionately. I must also denounce your conduct. This was serious offending. You should be ashamed of yourself but you seem not to be, which is really quite puzzling.
52 I must give weight to specific deterrence, that is to say, the need to deter you from offending in the future. That is of importance here. Courts have tried to deter you in the past, I will try again. This offending involves a sizable escalation.
53 General deterrence relates to the need to deter other people. It looms large here. This court must send a clear message to others in the community who might be thinking of committing the sorts of crimes that you committed. Anyone targeting a bus carrying members of the public should be under no illusions as to the sizable prison term coming their way if caught. Like-minded future offenders must be deterred.
54 Community protection is also of importance in this case. It is obvious, given the unprovoked nature of these crimes, that I must protect the community from you.
55 I am required to have regard to the maximum penalties. I also have to pay regard to current sentencing practices and the impact of your crimes. I have mentioned already, the impact has been large.
56 As to current sentencing practices, it is not a single controlling factor. I have looked at the online statistics for attempted aggravated carjacking, common assault and threat to kill. There are no formal sentencing snapshots for these offences. I ignore any data or any of the past cases dealing with the completed offence of aggravated carjacking as many instances of completed offences would be subject to a mandatory non-parole period provision, which is not in force in this case given that I am dealing with an attempt.
57 I have looked at some instances of sentences imposed for common assault and attempted aggravated carjacking and threat to kill. I have looked at the cases to which I was referred by the prosecutor. None of them is identical or even very similar. There are differences in every direction.
58 In any event, statistics have inherent limitations, sentencing is not a mathematical task and other cases are not precedents. No amount of looking at other cases or the statistics will ever provide the answer to my sentencing task.
Totality
59 I have taken a last look at the orders that I intend to make and I have done that to guard against a crushing outcome and to ensure that the total effect of my sentences is commensurate with your criminality here. Here, I have four separate offences, in the sense that they are different offences with different elements and impacts, even a different victim in terms of Charge 3, which relates to the bus company.
60 The attempted aggravated carjacking is the most serious offence by far but the assault and the threat to kill are serious enough. The criminal damage was just wanton and senseless. Each of the offences targeting Mr Guli have a role to play in the ongoing impact. There must be a degree of cumulation to reflect the separate criminality and the separate impact. There is, though, in this case, plainly a very strong temporal link and I believe that provides a legitimate basis to significantly moderate the level of cumulation.
61 Prison is a disposition of last resort. There is no other option here given the seriousness of this offending. Your counsel concedes this to be so.
62 I must pass appropriate sentences. I must then order an appropriate level of cumulation. This will all lead to a sentence of imprisonment of a dimension where I am required by law to fix a non-parole period. Your counsel, Ms Thompson, sensibly concedes that this is the true position.
63 I am not free to speculate as to whether you will actually be released on parole. I must proceed on the basis that you will serve every day of the head sentence which I will shortly pronounce. It will be the Adult Parole Board who will make a decision as to whether and when you can be released. It has nothing to do with me, but plainly enough, some form of structure upon your ultimate release would be useful for you and also for the community, in that it would likely reduce your ongoing risk. My sentencing remarks will be provided to the Adult Parole Board.
64 Now there is a compensation order in this case. There's no objection to the making of it. It is consented to.
Compensation order.
65 I am satisfied that the application for Compensation is appropriate and I should make the order sought under the provisions of s86 of the Sentencing Act. This order is made in relation to Charge 3, the charge of criminal damage of property belonging to the Ventura Transit Company and I am satisfied they have sustained loss arising from the commission of this crime. I order then that you pay to that company compensation in the sum of $405.75 and I have signed that order.
Sentence
66 I will have you stand up please now Mr Harkin, if you would. Thank you.
Indictment
67 On the charge of attempted aggravated carjacking, Charge 1, you are convicted and sentenced to three years' imprisonment. That will be the base sentence.
68 On Charge 2, the threat to kill, I convict and sentence you to 18 months' imprisonment.
69 On Charge 3, the criminal damage, you are convicted and sentenced to one month imprisonment.
70 On Charge 4, common assault, I convict and sentence you to 14 months' imprisonment.
Cumulation
71 The base sentence is the three years imposed on Charge 1.
72 I direct that four months of the sentence imposed on Charge 2 and four months of the sentences imposed on Charge 4 is to be served cumulatively upon the base sentence and upon each other. The one month term of imprisonment that I have imposed on the criminal damage will be served concurrently with all these sentences.
Total effective sentence
73 Those orders result in a total effective sentence of 44 months or three years and eight months' imprisonment.
Non-parole period
74 I fix a period of two years three months or 27 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
75 You have already served 336 days of this sentence by way of the pre-sentence detention – you get credit for that – and so that s18 declaration is entered into the records of the court.
Licence orders either s 89 ss4
76 On Charge 1, the charge of attempted aggravated carjacking, all licences are cancelled and you are disqualified from driving in this state or from obtaining any further licence for a period of 12 months from today's date.
Section 6AAA.
77 I have taken into account your guilty plea and I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have convicted and sentenced you to five-and-a-half years' imprisonment. I would have fixed a non‑parole period in that setting of three years and 10 months.
78 Just grab a seat then for a moment, I will see if there is anything else I need to attend to. Anything from your perspective, Mr McCulloch?
79 MR McCULLOCH: No, Your Honour.
80 HIS HONOUR: Ms Thompson, from yours?
81 MS THOMPSON: No, Your Honour.
82 HIS HONOUR: You'll go down and see your client downstairs, will you, and - - -
83 MS THOMPSON: I will, Your Honour.
84 HIS HONOUR: That completes the matter then, Mr Harkin. Ms Thompson will come downstairs and see you downstairs today and no doubt she'll discuss with you what's happened here today, and your rights in relation to this sentence. She'll come down and do that shortly. But otherwise, that completes the matter. So if Mr Harkin can now be removed please, thank you. I've signed that formal order then. I'll stand down, thank you.
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