STATE OF TASMANIA v AARON JAMES LEE 3 OCTOBER 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Lee, an application has been made in respect of your breach of a community service order. The order was made by Porter J, as part of a wider sentence, on 28 October 2010. Other components of the sentence included 12 months’ imprisonment which was suspended for two years, and a 12 month probation order. You satisfactorily completed both of those orders. However, in relation to the community service order, his Honour ordered that you perform 180 hours of community work. Between then and now, you have only completed 28.75 hours, leaving 151.25 hours outstanding. Your breach of the order is conceded, and accordingly I am satisfied that you have breached the order by not performing this portion of the work.
The sentence was imposed for the crime of aggravated armed robbery. It was a serious crime, in which you robbed a pizza delivery person by threatening him with a hunting knife. He, in fact, suffered some minor injury. The sentence imposed seems to me to have been an extremely merciful one.
Your excuse for not completing the work, despite having had ample opportunity to do so, is that your psychological difficulties make it impossible for you to work with others. However, you have not been able to produce satisfactory medical evidence to support this excuse. On the basis of the report produced to me by your general practitioner, I accept that you have psychological problems, in particular post-traumatic stress disorder, and you also seem to have a significant problem with the abuse of alcohol. Your general practitioner acknowledges that you suffer a significant mental health disorder and may have a problem with social phobia, but does not believe that you are permanently unable to complete any work while people are present. However, I do accept that you believe, genuinely, that you suffer from this disability.
An order for the performance of community service is imposed as a punishment. It is not optional. If such an order is breached, including by not performing the work, the court has various options which range from confirming the order to imposing some other sentence. In circumstances where the work is not done without good excuse, if the court cancels the order, then, in my view, the alternative sentence should take into account the need to satisfy the original sentencing objectives, which, in this case, include general deterrence and punishment.
In your case, I have decided that it is appropriate to cancel the order but that some other sentence must be imposed. Given the seriousness of the original offence, my view is that it is appropriate to impose a modest term of home detention. In assessing the period, I will take into account that you have already endured the prospect of a significant sentence of imprisonment being activated if you breached the conditions of the suspended sentence, and that you responded well to that sentence by not reoffending. In that sense, the suspended sentence achieved its objective. I will also take into account that you complied in a satisfactory way with the probation order and have performed a small amount of the community service. The remaining community service would have involved you, on my calculation, working for approximately 21 full days. However, because home detention is likely to be less onerous than community service, I think it is appropriate that the relevant period be longer than that period of 21 days.
Accordingly, I order that the community service order be cancelled and make a home detention order, which will have an operational period of 3 months, commencing today. The home detention premises will be at [detention premises]. I note that the all of the prescribed core conditions of the order contained in s 42AD(1), which include subpar (g), which is that you must submit to electronic monitoring including by wearing or carrying an electronic device and subpar (i), which is that you must submit to tests for the presence of illicit drugs as directed by appropriate persons, will have effect during the operational period of the order. For the purposes of the condition contained in s 42AD(1)(c), I specify that you must, during the operational period, be at the home detention premises at all times on each day of the week unless you are not there for a relevant reason, as specified in s 42AD(4). Because of what I have read in the report prepared by Community Corrections, I will not impose a special condition concerning the consumption of alcohol. However, the order will include a special condition that you must report to a probation officer at Community Corrections in Launceston immediately after your release from Court today.