STATE OF TASMANIA v AYDAIN KANE HOUSE 5 SEPTEMBER 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr House, you have pleaded guilty to one count of burglary and one count of stealing.
The crimes were committed by you in April 2019. You broke into a storage facility of a business involved in the sale of industrial and safety supplies and stole property of an aggregate value which exceeded $50,000. Because of the volume of material involved, it was necessary for you to return to the property more than once over the course of a couple of days. The crime was deliberate, well-planned and carried out in a professional manner. None of the property has been recovered. When interviewed by police, you admitted your responsibility for committing the crime and told them that you had sold the property in exchange for cash and drugs. However, you did not tell police to whom you had sold the property, nor provide any assistance in relation to the recovery of it. And I have to say, in my view, that does detract a little from your claims of remorse and your desire to rehabilitate.
However, I take into account your personal circumstances. You are 27 years of age and have a significant criminal history. That history includes the continual commission of a variety of offences over many years, but crimes of dishonesty, including of a nature similar to this, appear on a regular basis. You have had a serious drug problem for many years, and this is directly related to most of your previous offending. You committed these crimes to obtain drugs, and money to buy drugs. A drug treatment order assessment report assesses you as suitable and eligible for a drug treatment order. There is suitable drug-free accommodation available to you upon your release from prison, and I agree with your counsel that that is an extremely significant matter. I accept that you are genuine in your desire to remove illicit drugs from your life. I note that you have made a number of attempts in the past, and I am sure that on those occasions you were also genuine in your desire to get off drugs. You only get a certain number of chances. This will be a chance, because I do intend to make such an order. But I would advise, and suggest to you, that it is in your best interests to use every effort and every endeavor to ensure that you stick to the letter of the conditions of the order, and make the best of this opportunity. You are unlikely to get another one. So, I do intend to make a drug treatment order.
The formal orders I make are these:
1 You are convicted of the crimes to which you have pleaded guilty.
2 In assessing the custodial component of the drug treatment order, I have taken into account the serious nature of the conduct, as well as mitigating factors such as your early plea of guilty. I have also taken into account that you have now been in custody in respect of these crimes since 26 June 2019. A custodial period of a drug treatment order cannot, of course, be backdated to take account of time already spent in custody. I intend to impose a custodial period of two years, which is the maximum available, but also reflects the reality that had I sentenced you for this crime, I would have probably imposed a sentence in the vicinity of two years and six months with none suspended. When regard is had to the time that you have already actually spent in custody, I think that a further custodial period of two years is adequate in this case.
I am satisfied, on the balance of probabilities, that you have a demonstrable history of illicit drug use, and that illicit drug use contributed to the commission of the crimes with which I am dealing. I consider that were I not making this order, I would have sentenced you to a term of imprisonment and would not have suspended the sentence, either wholly or in part. I have considered the contents of the Drug Treatment Order Assessment Report provided to me. I note that you are not subject to a parole order under the Corrections Act or another drug treatment order, and that no proceedings are pending against you in any court for a sexual offence or an offence involving the infliction of actual bodily harm. I am satisfied in all the circumstances that it is appropriate to make a drug treatment order. I am satisfied that the facilities likely to be used for the treatment and supervision part of the order are reasonably accessible to you, and that there are sufficient staff and resources to enable the treatment and supervision to be provided under this order.
I note that the order will be subject to you agreeing in writing to the making of the order and to complying with the treatment and supervision part of the order. So, the order will take effect when you have had actually signed the relevant document.
The order itself is:
1 You are sentenced to a drug treatment order, pursuant to s 27B of the Sentencing Act which provides that you will be sentenced to a custodial period of two years’ imprisonment.
2 However, you are not required to serve all or any part of that order unless ordered to by a court, and that will occur if you do not comply with the conditions of the order.
3 The conditions will be the usual core conditions which are:
(a) You must not, in Tasmania or elsewhere, commit another imprisonable offence.
(b) You must attend the Launceston Magistrates Court of Tasmania on 7 October 2019 at 2.15pm and on each occasion thereafter to which the matter is adjourned by that court. Or otherwise as directed by that court.
(c) You must report to a court diversion officer at the office of Community Corrections in Launceston within two clear working days of the making of this order.
(d) You must undergo such treatment for your illicit drug use problem as is specified in this order or from time to time specified by the court.
(e) You must report to, and accept visits from, your case manager or court diversion officers.
(f) You must, unless there are special circumstances, give your case manager at least two clear workings days’ notice before any change of address.
(g) You must not leave Tasmania except with the permission, granted either generally or in a particular case, of the court.
(h) You must comply with all lawful directions of the court.
(i) You must comply with all reasonable directions of your case manager and court diversion officer concerning the core conditions and program conditions of this order.
The program conditions of the order will be as follows. They are essentially those that are set out in the report:
(j) You must not use any illicit substance.
(k) You must submit to random drug testing as directed by your case manager or court diversion officer.
(l) You must submit to urinalysis and oral fluid testing as directed by your case manager or court diversion officers.
(m) You must attend an appropriate clinician for a mental health assessment as directed by your case manager or court diversion officers.
(n) You must attend counselling and treatment for mental health as directed by your case manager or court diversion officers.
(o) You must attend educational and other programs as directed by your case manager or court diversion officers.
(p) You must participate in and successfully complete the EQUIPS addiction program as directed by your case manager or court diversion officers.
(q) You must submit to a residential detoxification and/or rehabilitation program as directed by your case manager or court diversion officers.
(r) You must maintain a working mobile telephone for the purpose of supervision under the CMD program.
(s) You must remain contactable, including by way of that mobile telephone, at all times.
I hope you understand all that Mr House and I hope you appreciate that it is a real opportunity for you to make a very positive change in your life. And if you can achieve that I am sure you and other people that you are close to, such as your children, will be much happier for it. I wish you all the best. The Magistrates Court will now actually supervise this order.
6 September 2019
I order that the Drug Treatment Order be appropriately adjusted to include the charges referred to on complaint 33189 involving aggravated burglary, stealing a firearm and stealing. Otherwise, the order will remain as I pronounced it yesterday.