A 23-year-old man refused to give evidence in a Supreme Court trial of Corey Mitchell Gesler because he was concerned he would encounter Gesler while in custody, the Supreme Court heard.
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Jake Douglas Herlihy was found guilty of contempt of court after refusing to give evidence in the Gesler bashing trial last week.
Defence counsel Lucy Flanagan said it was the concern of encountering Gesler that caused Herlihy not to give evidence.
Gesler, 28, of Youngtown, was found guilty by a jury of aggravated armed robbery and intentionally causing grievous bodily harm to Alexander Robert Friend at Waverley on January 9-10, 2018.
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Herlihy and Clinton Charles Wilson, 29, who also refused to give evidence in the trial, were co-offenders with Gesler, but pleaded guilty over the last three years.
During the trial, Herlihy came to the door of the Supreme Court in the presence of a jury and told Justice Robert Pearce "I do not want to be here".
He maintained his position overnight despite receiving legal advice and he was charged with contempt of court.
Justice Robert Pearce found him guilty of contempt for his failure to comply with a requirement to enter the witness box and give evidence on June 22.
Similarly, Wilson refused to leave his cell and give evidence on June 21.
Justice Pearce also found him guilty of contempt.
Wilson's defence counsel, Hannah Phillips, said Wilson was released on parole in May 2021, but had breached his parole and was back in jail.
"He does not want to be involved in this life, he wants to do his time and put it behind him," Ms Phillips said.
During the trial, a substantial part of the interviews Wilson and Herlihy gave to police in January 2018 were played to the jury after an application by the Crown.
Justice Pearce told both men he would sentence them for contempt of court on Thursday, July 7 at 4.15pm.
The decision not to give evidence could also prove doubly costly for the pair with a possibility their jail sentences could be increased by up to 18 months for reneging on a deal to give evidence in the trial.
Herlihy received a four-year, nine-month jail sentence in February 2020 - a 15-month discount for agreeing to give evidence.
"But for your plea and willingness to give evidence I would have sentenced you to imprisonment for six years," Justice Pearce said in sentencing.
"I have reduced the head sentence by just over 20 per cent. I also state that those factors influence my decision to allow you the earliest possible eligibility for parole."
Wilson received a five-year, six-month jail sentence when he pleaded guilty in December 2019.
Justice Pearce allowed a 10 per cent discount for pleading guilty and another 10 per cent for agreeing to give evidence.
"But for those factors, I would have sentenced you to imprisonment for seven years," he said. Wilson's non-parole period was reduced from four years to 33 months for the same reasons.
"It is the policy of the criminal law to allow a reduction in sentence in return for giving evidence in relation to co-offenders.
"The indication of a willingness to give evidence is likely to make your life more difficult both in prison and possibly after your release.
"If you fail to co-operate as you have promised the sentence may be reviewed and increased on appeal."
The jury heard during the trial that Wilson and Gesler arrived together at a Waverley unit on a motorbike.
A third co-offender, Sammual Clinton Wilmot, also received an 18-month sentence discount after pleading guilty in December 2021.
He gave evidence in the trial although many of his responses comprised "dunno'', "can't recall'', "not that I remember" and he claimed he was intoxicated on drugs.
Wilmot's interview with police was also played to the jury during which he said the bashing was brutal and should never have happened.
The Director of Public Prosecutions has not yet lodged an appeal. Justice Pearce lifted suppression orders on the reporting of the Wilson and Herlihy matters.
Recently a Launceston man who welched on his deal to give evidence in a murder trial had his non-parole period increased by two years as a result of a Court of Criminal Appeal decision.
William Adair Rothwell, then 17, was sentenced to 26 years in jail by Justice Pearce with a non-parole period of 15 years for the murder of Billy Ray Waters.
Rothwell's non-parole period was originally discounted by two years because he agreed to give evidence.
When he failed to give satisfactory evidence his non-parole period was increased by two years to 17 years.
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Nick Clark
I am the Supreme and Magistrates Court reporter for the Examiner for the past 18 months. My journalism career has clicked over 30 years and encompasses four different spells at Tasmanian newspapers.
I am the Supreme and Magistrates Court reporter for the Examiner for the past 18 months. My journalism career has clicked over 30 years and encompasses four different spells at Tasmanian newspapers.
