SUPREME COURT OF NORFOLK ISLAND

Regina v Evans (No 1) [2021] NFSC 2

ORDERS

THE COURT NOTES THAT:

1.    The sentence on counts 1 and 2 in the indictment filed on 31 May 2021 will include a recognisance release order under s 20(1) of the Crimes Act 1914 (Cth) in the following terms:

The offender be released from the imprisonment imposed for counts 1 and 2 immediately and give security of $10,000 with one surety by recognisance and comply with the following conditions that:

(1)    he will be of good behaviour for five years,

(2)    up to 3 June 2023, he will submit to urine testing as and when required by Norfolk Island Police,

(3)    up to 3 June 2023, he will not use or consume any border controlled drugs,

(4)    up to 4 March 2022, he will reside at his current address, must not leave the house between 9:00pm and 6:00am and must present at the door when attended by police unless otherwise authorised by the Commonwealth Director of Public Prosecutions (CDPP) and otherwise not leave the address except:

(a)    to attend his employment,

(b)    report to police under this order,

(c)    perform community service as ordered by the Court

(d)    in an emergency,

(e)    other than for a purpose in (a), (b), (c) or (d), if authorised in writing by the officer in charge of Norfolk Island Police (OIC) and accompanied by Amanda May or another person authorised by the OIC,

(5)    up to 4 March 2022, any visitor to him at his residence be approved in writing by the OIC and, unless authorised by the OIC, be supervised by Amanda May,

(6)    up to 4 March 2022, he will report to the OIC every Monday, Wednesday and Friday between 7:00am and 5:00pm,

(7)    up to 4 March 2022, he will not leave or attempt to leave Norfolk Island without the prior written authorisation of the CDPP and if granted such authorisation will submit himself to internal search by x-ray or ultra-sound as directed by any police officer or officer of the Australian Border Force prior to departing from mainland Australia.

REASONS FOR JUDGMENT

RARES J:

1    On 31 May 2021, the offender, Adrian Kenton Evans, entered pleas of guilty to all counts in the indictment, including counts 1 and 2 (the federal counts), that were:

(1)    On or about 19 July 2018 at Norfolk Island, he possessed a controlled drug, cannabis, contrary to s 308.1(1) of the Criminal Code in the Schedule to the Criminal Code Act 1995 (Cth) (the federal possession count),

(2)    Between 9 April 2019 and 11 April 2019 at the Island, he trafficked in a controlled drug, methamphetamine, contrary to s 302.4(1) of the Code (the trafficking count),

2    The federal possession count carries a maximum penalty of two years’ imprisonment or 400 penalty units ($84,000) or both and the trafficking count carries a maximum penalty of ten years’ imprisonment or 2,000 penalty units ($420,000) or both. At the times of the offending, a penalty unit under s 4AA(1) of the Crimes Act 1914 (Cth) was $210.

Can a recognisance release order impose conditions for home detention on the federal counts?

3    During the course of argument on sentence, the Crown argued that there was no power under ss 19AC(1) and 20(1)(b) of the Crimes Act for a court to include one or more conditions in a recognisance release order imposed after a sentence of imprisonment that have the effect of a home detention order under s 43 of the Sentencing Act 2007 (NI).

The statutory scheme

4    The provisions of Pt IB of the Crimes Act apply to the sentencing of the offender on each of the federal counts. Under s 19AC(1) of the Crimes Act, where, as I will do here, on conviction of an offender, a court imposes one or more federal sentences of imprisonment not exceeding three years in total, it must make a single recognisance release order in respect of all such sentences, except in certain limited circumstances that do not apply in the present case.

5    The power to impose conditions in a recognisance release order is found in s 20(1) of the Crimes Act that relevantly provides:

20    Conditional release of offenders after conviction

(1)    Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:

(a)    by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:

(i)    that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;

(ii)    that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his or her prosecution for the offence or offences (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):

(A)    on or before a date specified in the order; or

(B)    in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs--by specified instalments as provided in the order;

(iii)    that he or she will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with subsection (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order;

(iv)    that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or

Example:    A condition under subparagraph (iv) could be that the person will undertake a specified counselling, education or treatment program during a specified part of, or throughout, the specified period.

(b)    sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a)…

(emphasis added)

6    Relevantly, s 20AB(1), (1AA), (1A), (3) and (4) provide:

20AB    Additional sentencing alternatives

(1)    A court may pass a sentence, or make an order, in respect of a person convicted before the court in a participating State or participating Territory of a federal offence, if:

(a)    subsection (1AA) applies to the sentence or order; and

(b)    under the law of the State or Territory, a court is empowered to pass such a sentence, or make such an order, in respect of a State or Territory offender in corresponding cases; and

(c)    the first‑mentioned court is:

(i)    empowered as mentioned in paragraph (b); or

(ii)    a federal court.

(1AA)    This subsection applies to a sentence or order that is:

(a)     known as any of the following:

(i)    an attendance centre order or attendance order;

(ii)    a community based order;

(iii)    a community correction order;

(iv)    a community custody order;

(v)    a community service order;

(vi)    a community work order;

(vii)    a drug or alcohol treatment order or rehabilitation order;

(viia)    a residential treatment order;

(viii)    a good behaviour order;

(ix)    an intensive correction order;

(x)    an intensive supervision order;

(xi)    a sentence of periodic detention or a periodic detention order;

(xii)    a sentence of weekend detention or a weekend detention order;

(xiii)    a work order; or

(b)    similar to a sentence or order to which paragraph (a) applies; or

(c)    prescribed for the purposes of this subsection.

(1A)    Where the law of a participating State or a participating Territory requires that before passing a sentence, or making an order, of the kind referred to in paragraph (1)(b) a court must first pass another sentence or make another order (whether or not that other sentence or other order is suspended upon the making of the first‑mentioned sentence or order), then, a court is not required, before passing or making that first‑mentioned sentence or order in respect of a person convicted by that court for a federal offence, to pass that other sentence or make that other order.

…

(3)    Where a sentence or order referred to in subsection (1) is passed or made under that subsection in respect of a person convicted in a State or Territory of a federal offence, the provisions of the laws of the State or Territory with respect to such a sentence or order that is passed or made under those laws shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1).

(4)    Where a court passes a sentence, or makes an order, under subsection (1) in respect of a person convicted of an offence against the law of the Commonwealth, the court may also do all or any of the following:

(a)    impose any fine or other pecuniary penalty that the court is empowered to impose on the person for the offence;

(b)    make any order requiring the person to make reparation or restitution, or pay compensation, in respect of the offence that the court is empowered to make;

(c)    make any other order that the court is empowered to make.

7    The definition of “participating Territory” in s 3B(2)(b)(i) of the Crimes Act includes the Island. Regulation 15 of the Crimes Regulation 2019 (Cth) prescribes, for the purposes of s 20AB(1AA), a home detention order under sentencing provisions in South Australia, Tasmania and the Northern Territory. However, reg 15 does not prescribe as an alternate sentencing option, under s 20AB(1)(b) or (c), a home detention order of the kind that this Court can make under s 43 of the Sentencing Act 2007 (NI) in respect of offences against the laws of the Island available.

The Crown’s submissions

8    The Crown relied, for its stance, on R v Shambayati (1999) 105 A Crim R 373 at 376 [17]. There, Pincus, Davies and Thomas JJA held that the power in s 20(1)(a)(iv) did not allow a condition to be imposed in a recognisance release order which had the effect of the additional orders that s 20AB(1) expressly contemplated could be imposed under it, such as home detention or community service. The Crown contended that it would be inconsistent with s 20AB to use s 20(1)(a)(iv) to impose such a condition in a recognisance release order. It submitted that the only form of conditional release from imprisonment for a period of three years or less available under federal law was a recognisance release order. It argued that s 20(1)(a)(iv) did not permit a court, when sentencing for a federal offence, to seek to mimic the effect of a State or Territory law that allowed a court to order a sentence of imprisonment to be served by way of home detention or community service, relying on Atanackovic v R (2015) 45 VR 179 esp at 204–206 [78]–[86] and R v Tran [2019] SASCFC 5 at [48]–[63].

Consideration

9    I reject the Crown’s submission.

10    The purpose of a recognisance release order evinced in s 19AC of the Crimes Act is that it operates as part of an overall sentence of imprisonment, in lieu of a period of parole, at the conclusion of the time of no more than three years that an offender must spend in a prison. The power to make such an order, necessarily, contemplates that it may operate as a restriction on the liberty of the individual to whom it applies. That power is contained in s 20(1) which is headed “Conditional release of offenders after conviction”. The power is intended to be used to regulate the behaviour of the offender while he or she is released from serving the balance of a sentence of imprisonment and up to five years after his or her release (s 20(1)(a)(i)) by requiring him or her to comply with “such other conditions (if any) as the court thinks fit to specify in the order” (s 20(1)(a)(iv)). It is a power that must be exercised as part of the Court’s duty under s 16A(1) to “impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”. It follows that it is inherent in the statutory scheme that the conditions that a court has power to include in a recognisance release order must have regard to punishment of the severity appropriate to the crime of which the offender stands convicted.

11    In Isaacs v McKinnon (1949) 80 CLR 502, Latham CJ, Rich, McTiernan and Webb JJ held that a condition could be imposed under s 20(1)(a)(iv) that required a bankrupt, who had been convicted of disposing of his property other than in the ordinary way of his trade, to pay to the Official Receiver £160 a year, by quarterly instalments, for five years. The Court held that the conditions of the recognisance had to be relevant to the behaviour of the person sentenced in matters affecting the Act under which the conviction occurred. McTiernan J, with whom Rich J agreed on this issue, said (80 CLR at 520, and see too per Latham CJ at 510–511, Webb J at 531–532):

… The Court of Bankruptcy is a court to which s. 20 (1) of the Crimes Act gives the powers contained in that provision. It adds those powers to the powers conferred by the Bankruptcy Act upon the court. Section 20 (1) gives to the Court of Bankruptcy the same general discretion in respect of the conditional release of offenders as the provision gives to any other court. The question whether any condition upon which a court orders the release of an offender is within the general discretion given by s. 20 (1) would depend upon its connection with some relevant principle such as retribution, correction or punishment and perhaps various moral and social considerations. From this point of view the discretion which the Court of Bankruptcy has under s. 20 (1) is not more limited than that of any other court to which it applies. But the discretion is one which every court is bound to exercise subject to law. Neither the Court of Bankruptcy nor any other court may impose a condition which contravenes the Bankruptcy Act or any other statute or is contrary to public policy.

(emphasis added)

12    Dixon J, who dissented on the issue of whether the condition was contrary to the policy of bankruptcy law, said (80 CLR at 523):

The words “such conditions as the court thinks fit to impose” are very wide but they do not authorize the imposition of conditions which are repugnant to the principles or policy of the law or are foreign to the purpose of the power. The provision is concerned with the consequences of crimes against Federal law. Federal laws against which offences may be committed deal with a variety of subjects and the specific applications of the power to impose conditions must vary accordingly.

13    In The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ said (applied in PM v The Queen (2007) 232 CLR 370 at 377 [20] per Gleeson CJ, Hayne, Heydon and Crennan JJ):

It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.

(citation omitted)

14    Moreover, the text of s 20(1)(a)(iv), as taken up when s 20(1)(b) applies by force of s 19AC(1), lends no support to acting on an unexpressed limitation on the power it confers on the Court to impose conditions in a recognisance release order that apply to regulate the behaviour of the convicted person when the Court has ordered him or her to be released from serving a sentence of imprisonment subject to conditions: Alcan (NT) Alumina Pty Ltd v Commission of Territory Revenue (2009) 239 CLR 27 at 46–47 [47] per Hayne, Heydon, Crennan and Kiefel JJ.

15    The width of the power appearing in the ordinary and natural meaning of s 20(1)(a)(iv) is reinforced by the note underneath it that gives examples of conditions that may be ordered that require the person to undertake specific activities during a particular period. Compliance with such an order necessarily involves a restriction on the freedom that the convicted person would otherwise have had. In Adams v Carr (1987) 47 SASR 205 at 214–216, von Doussa J, with whom King CJ and Bollen J agreed, held that a condition could be imposed under s 20(1)(a)(iv) that the person undertake a specified number of hours of community service and obey the lawful directions of a community service officer to whom the person is assigned, even though a court sentencing for a federal offence could not make the order directly under a State or Territory law referred to in s 20AB(1) of the Crimes Act. That was because the non-federal law did not authorise, for example, a community service order, to be made as part of an order imposing a good behaviour bond.

16    Since s 19AC(1) of the Crimes Act requires a court imposing a sentence of three years or less for a federal offence to make a recognisance release order as the gateway to regulate the convicted person’s conduct during the non-custodial phase of his or her sentence, courts have held that for any order to be validly made under a State or Territory law picked up in s 20AB(1), it must be able to be made in the same circumstances as an order under s 20(1) of the Crimes Act. However, as von Doussa J explained in Adams 47 SASR at 214–216, a condition imposed under s 20(1)(a)(iv) can achieve a similar outcome as an order that cannot be made directly by picking up a non-federal law as s 20AB(1) allows.

17    In my opinion, the reasoning in Shambayati 105 A Crim R at 376 [17] is plainly wrong so far as it may apply to the current form of the Crimes Act. First, s 20AB(1AA)(a)(vii), (viia) and (viii) specifically apply to drug or alcohol treatment, rehabilitation, residential treatment and good behaviour orders. Such orders are consistent with both s 20(1)(a)(i), that enables the Court to require the person to be of good behaviour for such period not exceeding five years as specified in the recognisance release order, and with the examples given in the note to s 20(1)(a)(iv). Secondly, the reasoning is in the teeth of the express words of s 20(1)(a)(iv), was contrary to the construction of the provision in Isaacs 80 CLR at 510–511, 523–524 and ignored the principles of statutory construction in Shin Kobe Maru 181 CLR at 421, 520, 531–532; Alcan 239 CLR at 46–47 [47]. Thirdly, the reasoning failed to recognise that s 20AB(1) was an additional source of power for a court to impose a sentencing order under the Crimes Act that should be construed in accordance with the principles of statutory construction to which I have referred. Their Honours’ use of the existence of the power to make additional orders conferred in s 20AB(1) as a limitation on the wide power in s 20(1)(a)(iv) inverted the need to have regard to each section as a source of power, reading its text in its ordinary and natural meaning.

18    Fourthly, as Isaacs 80 CLR 502 recognised, the discretion in s 20(1)(a)(iv) could not be exercised to impose a condition that was contrary to public policy or the Act creating the offence. Indeed, a discretion of that kind is, ordinarily, construed as “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J, applied by Stephen, Mason, Murphy, Aickin and Wilson JJ in The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; see too R v Theodossio (1998) 104 A Crim R 367 at 370 per de Jersey CJ, McPherson JA and Chesterman J.

19    Here, the Parliament evinced a policy that the sentencing provisions of the Crimes Act could achieve sentencing outcomes consistent with, indeed (subject to there being no conflict with the Act itself), in the exact terms of, participating State and Territory laws referred to in s 20AB(1). It would be an odd result that if such an outcome, like a home detention order, was able to be imposed in one participating State or Territory but not in another, the law of which made its imposition inconsistent with Pt IB of the Crimes Act, a sentencing court in the latter jurisdiction could not seek to achieve the same outcome by structuring appropriately adapted conditions in a recognisance release order, as von Doussa J explained in Adams 47 SASR at 214–216. The Parliament can be taken to have intended that the exercise of sentencing powers conferred in the Crimes Act on courts across the Commonwealth should provide, so far as possible, consistent outcomes for similar offending. That principle underlines all federal sentencing: The Queen v Pham (2015) 256 CLR 550 at 556–557 [18]–[22] per French CJ, Keane and Nettle JJ, with whom Bell and Gageler JJ agreed on this issue at 563 [41]; see too Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381–382 [69]–[70] per McHugh, Gummow, Kirby and Hayne JJ.

20    In addition, in Atanackovic 45 VR at 206–207 [89]–[93], Weinberg, Kyrou and Kaye JJA said, in obiter dicta, that it was arguable that a federal sentence could be structured under s 20(1) to combine more than one sentencing disposition (see 207 [92]). In Tran [2019] SASCFC 5 at [56], Kourakis CJ, Blue and Lovell JJ said:

… It can be accepted that it is only on a recognizance release order pursuant to which a Commonwealth offender can be released from prison before the expiration of a term of imprisonment of less than three years. However, the imposition of further penalties or obligations on the defendant’s release from prison, whether on a recognizance release order or on the expiry of the sentence, would not impinge on the conditions of release. The penalty order operates in the event of release but does not detract from the legal operation of s 20 of the Crimes Act. Nor does it trespass onto any field covered by s 20 because the terms and conditions of the recognizance are no more than that they determine what will breach the recognizance and subject the defendant to the sanctions provided for by s 20A of the Crimes Act.

(emphasis added)

Conclusion

21    For these reasons, I am of opinion that ss 19AC(1), 20(1)(a)(iv) and (b) of the Crimes Act authorise the inclusion in a recognisance release order of conditions that have the same effect that could be achieved were there power under s 20AB(1) to impose any of the alternate sentencing options, including home detention available under the Island’s Sentencing Act: Adams 47 SASR at 214–216.

22    Accordingly, I will, when passing sentence, make a recognisance release order in the following

The offender be released from the imprisonment imposed for counts 1 and 2 immediately and give security of $10,000 with one surety by recognisance and comply with the following conditions that:

(1)    he will be of good behaviour for five years,

(2)    up to 3 June 2023, he will submit to urine testing as and when required by Norfolk Island Police,

(3)    up to 3 June 2023, he will not use or consume any border controlled drugs,

(4)    up to 4 March 2022, he will reside at his current address, must not leave the house between 9:00pm and 6:00am and must present at the door when attended by police unless otherwise authorised by the Commonwealth Director of Public Prosecutions (CDPP) and otherwise not leave the address except:

(a)    to attend his employment,

(b)    report to police under this order,

(c)    perform community service as ordered by the Court

(d)    in an emergency,

(e)    other than for a purpose in (a), (b), (c) or (d), if authorised in writing by the officer in charge of Norfolk Island Police (OIC) and accompanied by Amanda May or another person authorised by the OIC,

(5)    up to 4 March 2022, any visitor to him at his residence be approved in writing by the OIC and, unless authorised by the OIC, be supervised by Amanda May,

(6)    up to 4 March 2022, he will report to the OIC every Monday, Wednesday and Friday between 7:00am and 5:00pm,

(7)    up to 4 March 2022, he will not leave or attempt to leave Norfolk Island without the prior written authorisation of the CDPP and if granted such authorisation will submit himself to internal search by x-ray or ultra-sound as directed by any police officer or officer of the Australian Border Force prior to departing from mainland Australia.

Associate:

Dated:    11 June 2021