Commonwealth Director of Public Prosecutions v Evans
[2022] FCAFC 182
•17 November 2022
FEDERAL COURT OF AUSTRALIA
Commonwealth Director of Public Prosecutions v Evans [2022] FCAFC 182
Appeal from: Regina v Evans (No 1) [2021] NFSC 2 File number: QUD 216 of 2021 Judgment of: ALLSOP CJ, WIGNEY AND BROMWICH JJ Date of judgment: 17 November 2022 Catchwords: CRIMINAL LAW – Crown appeal against sentence – where Crown seeks to have conditions to a recognisance set aside, as being beyond power, but to leave the sentence imposed otherwise intact – where no formal arrangement entered into by Norfolk Island to permit an order in the nature of home detention for federal offenders under the regime in s 20AB of the Crimes Act 1914 (Cth) – whether the primary judge erred in finding that there is power in s (20)(1)(a)(iv) instead of s 20AB of the Crimes Act to impose a condition amounting to home detention in a recognisance release order for federal offences – Held: recognisance did not impose a sentence amounting to home detention – appeal dismissed Legislation: Crimes Act 1914 (Cth) Pt IB; ss 20(1), 20(1)(a), 20(1)(b), 20(1)(b)(i), 20(1)(a)(iv), 20AB, 20AB(1AA)(a), 20AB(1AA)(c)
Crimes Regulation 2019 (Cth) reg 15
Sentencing Act 2007 (NI) s 43
Cases cited: Adams v Carr (1987) 47 SASR 205
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR
Boenschv Pascoe [2019] HCA 49; 268 CLR 593
Dimech v Watts [2016] ACTSC 221
Isaacs v McKinnon (1949) 80 CLR 502
R v Shambayati (1999) 105 A Crim R 373
Division: General Division Registry: Queensland National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 39 Date of hearing: 17 November 2021 Counsel for the Appellant: Mr L Crowley QC and Mr D Caruana Solicitor for the Appellant: Commonwealth Director of Public Prosecutions Counsel for the Respondent: The Respondent did not appear ORDERS
QUD 216 of 2021 BETWEEN: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Appellant
AND: ADRIAN KENTON EVANS
Respondent
ORDER MADE BY:
ALLSOP CJ, WIGNEY AND BROMWICH JJ
DATE OF ORDER:
17 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ALLSOP CJ:
I agree with the orders proposed by Bromwich J, with his Honour’s reasons, and with the additional reasons of Wigney J by way of explication. I would only add that the use of labels and summary categories risks interfering with, and oversimplifying, proper contextual analysis and informed characterisation. This is especially so in ascertaining the proper reach and content of judicial power designed to bring flexibility and justice to the individual case in sentencing.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop. Associate:
Dated: 17 November 2022
REASONS FOR JUDGMENT
WIGNEY J:
I agree with Bromwich J that the appeal should be dismissed. I also generally agree with his Honour’s reasons. I offer the following by way of brief further explication.
The appellant, the Commonwealth Director of Public Prosecutions, who is responsible for the conduct of criminal prosecutions on Norfolk Island, contended that, in sentencing the respondent, the primary judge did not have the power to order that, as a condition of him being released from imprisonment pursuant to s 20(1) of the Crimes Act 1914 (Cth), the appellant be required to reside at his current address between 9.00 pm and 6.00 am unless otherwise authorised. The imposition of that condition, as well as some related or ancillary conditions, was said to be beyond power essentially because the outcome was “substantially similar” to a sentencing option that would be available in a different state or territory pursuant to s 20AB of the Crimes Act. In the Director’s submission, s 20(1) of the Crimes Act, properly construed, does not permit the Court to impose such a sentence.
The Director’s narrow construction of s 20(1) of the Crimes Act cannot be accepted. Section 20(1) empowered the primary judge to order the respondent’s release subject to conditions, including that he reside at a particular address during certain hours.
Section 20(1)(a) of the Crimes Act relevantly provides that a sentencing court may order that an offender be released from imprisonment subject to the offender “giving security … that he or she will comply” with certain conditions, including “such other conditions as the court thinks fit to specify in the order”.
Section 20AB of the Crimes Act relevantly provides that a sentencing court is empowered to pass certain types of sentences, or make certain types of orders, in respect of a federal offender if that sentence or order could be passed or made in respect of a state or territory offender by a court under sentencing laws in “participating” states or territories. For example, if a participating state or territory has a law which permits a sentencing court to make an order known as a “community service order” in respect of a state or territory offender, a court sentencing a federal offender in that state or territory is empowered by s 20AB to make such an order in respect of the federal offender.
The Director claimed that the impugned conditions that were imposed by the primary judge were substantially similar to a “home detention order”. A “home detention order” is not one of the types of orders specified in s 20AB(1AA)(a) of the Crimes Act. Home detention orders are, however, available under South Australian and Tasmanian sentencing laws which have been prescribed for the purposes of s 20AB(1AA) of the Crimes Act: see s 20AB(1AA)(c). According to the Director, the fact that s 20AB of the Crimes Act empowered sentencing courts in South Australia and Tasmania to make a home detention order in respect of a federal offender meant that the Supreme Court of Norfolk Island, when sentencing a federal offender, did not have the power to make an order under s 20(1) of the Crimes Act which was substantially similar to such a home detention order. Section 20(1) of the Crimes Act, it was said, did not permit a court to make an order if a substantially similar order could be made under s 20AB. The Director also appeared to rely on the fact that s 43 of the Sentencing Act 2007 (NI) makes provision for a “home detention order”, though that sentencing option was not available in respect of federal offenders, including the respondent, because it does not fall within the terms of s 20AB of the Crimes Act.
The Director maintained that that narrow or restrictive construction of s 20(1) of the Crimes Act was supported by the Queensland Court of Appeal in R v Shambayati (1999) 105 A Crim R 373.
Unlike the primary judge, I do not consider that Shambayati was wrongly decided. I do not, however, consider that the decision in Shambayati assists the Director’s argument because it is plainly distinguishable. The order in question in Shambayati was that the offender’s release was conditional on him performing “community service”. The problem was that community service had “no meaning or regime for its performance” except under a particular state Act: Shambayati at [16]. It was that consideration that led the court to conclude that the only way in which community service could be imposed was by an order made pursuant to s 20AB of the Crimes Act. The court reasoned that “the legislature did not contemplate that community service could be imposed as a condition of release under s 20 which does not apply the relevant State provisions”: Shambayati at [17].
The problem that arose in Shambayati does not arise in the circumstances of this case. The conditions imposed by the primary judge did not use any term or expression, such as “home detention”, which had no meaning other than under Norfolk Island law. Nor did the condition require the application of any home detention “regime” that was only provided for under Norfolk Island law. The impugned condition simply required the respondent to stay at his home at night – in effect, a curfew. It is true, as the Director pointed out, that the condition imposed by the primary judge permitted the Director and the officer in charge of the Norfolk Island police to authorise a departure from the curfew in certain circumstances. That, however, could hardly be considered a “regime” which was only available under Norfolk Island law.
The Director also relied on the well known and accepted principle that “[w]hen the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power”: Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (Gavan Duffy CJ and Dixon J). That principle, however, has no application in the circumstances of this case.
It is readily apparent that s 20AB of the Crimes Act was intended to provide a court with additional sentencing options in respect of federal offenders by empowering it to pass certain types of sentences or make certain types of orders which were available under applicable laws of participating states and territories. There is nothing in the text or context of either ss 20 or 20AB which is suggestive of any legislative intention that the availability of the additional sentencing options in s 20AB would somehow exclude or limit the types of orders that the sentencing court could otherwise lawfully make under s 20(1) of the Crimes Act. The fact that an order made under s 20(1) might be said to be “substantially similar” to an order that might also be available under an applicable state or territory sentencing law by virtue of s 20AB is essentially beside the point, other than in the particular circumstance considered in Shambayati. Even in Shambayati, the problem could have been overcome by framing the condition in a way that did not require the application of the state law that provided for the community service regime.
The narrow and restrictive construction of s 20(1) of the Crimes Act propounded by the Director is not supported by the text, context and evident purpose of s 20(1). It would also have unreasonable and impracticable consequences. It would have unreasonable consequences because it could preclude a sentencing judge from ordering the release of an offender on conditions which would otherwise be entirely appropriate to achieve the objectives of sentencing, including punishment, deterrence and rehabilitation. It would have impracticable consequences because it would effectively mean that, before ordering the conditional release of a federal offender under s 20(1), a sentencing judge would have to somehow ensure that the order was not substantially similar to an order that could possibly be made, including in a different state or territory, by virtue of s 20AB of the Crimes Act.
The words “such other conditions (if any) as the court thinks fit to specify in the order” in s 20(1)(a)(iv) are very wide and not amenable to the narrow construction of s 20(1) of the Crimes Act proposed by the Director. It may be accepted that s 20(1) only permits the imposition of a condition which has some connection with a “relevant principle such as retribution, correction or punishment and perhaps various moral and social considerations”: Isaacs v McKinnon (1949) 80 CLR 502 at 529 (McTiernan J). It does 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”: Isaacs at 523 (Dixon J). The conditions imposed by the primary judge were not repugnant to the sentencing principles in the Crimes Act or foreign to the purposes of the power in s 20(1). Indeed, quite to the contrary.
The sentence passed by the primary judge was within power and the Director’s appeal must be dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate:
Dated: 17 November 2022
REASONS FOR JUDGMENT
BROMWICH J:
The Commonwealth Director of Public Prosecutions (CDPP), appeals against one aspect of a sentence imposed upon the respondent, Mr Adrian Evans, in the Supreme Court of Norfolk Island on 4 June 2021, for drugs and firearms offences. The relief sought is to have conditions to a recognisance set aside, as being beyond power, but to leave the sentence imposed otherwise intact. There was a benefit, and no detriment, to Mr Evans in the appeal succeeding, because the only effect would be to remove the obligations imposed by the impugned recognisance conditions. Mr Evans has filed a notice submitting to any order the Court may make in this appeal proceeding.
In Norfolk Island, no formal arrangements have been entered into to permit home detention for federal offenders to take place in as they are for offences under local laws, utilising the regime in s 20AB of the Crimes Act 1914 (Cth). The primary judge decided that there was a power to achieve the same result by making such orders a condition of a recognisance imposed under s 20(1)(a)(iv) and (b) of the Crimes Act. The CDPP had unsuccessfully submitted to his Honour that there was no such power. The CDPP, by a notice of appeal, challenges that conclusion. For the following reasons, his Honour did not impose a recognisance condition of home detention, and therefore did not err, such that the appeal must be dismissed. However, his Honour did err in finding that there was a power to make a home detention order via s 20(1)(a)(vi) and (b), instead of via s 20AB, which was not available.
Key legislative provisions
Section 20AB of the Crimes Act creates a scheme for federal offenders to participate in alternative sentencing options that are available to those who commit offences against State or Territory criminal laws. Subsections 20AB(1) and (1AA) provide (the remaining subsections not being presently relevant):
(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.
Not all State and Territory jurisdictions participate in the scheme. Regulation 15 of the Crimes Regulation 2019 (Cth) prescribes home detention orders in South Australia, the Northern Territory and Tasmania as orders which may be made pursuant to s 20AB. Norfolk Island has a home detention scheme under s 43 of the Sentencing Act 2007 (NI), but is not a participating Territory, so this sentencing option is not available to federal offenders under s 20AB.
Section 20 of the Crimes Act has long dealt with conditional release of federal offenders after conviction, preceding the s 20AB regime. Paragraphs s 20(1)(a) and (b) are as follows (the remaining subsections not being presently relevant):
(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):
(i)if none of the offences is a Commonwealth child sex offence—either immediately or after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or
(ii)if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances—after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or
(iii)if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances—immediately.
Section 20(1)(b)(i), which applied to Mr Evans, thus empowers a court to sentence an offender to imprisonment, but direct that the person be released immediately upon giving security of the kind referred to in paragraph 20(1)(a). The order may require the offender to enter into a recognisance, which may include the imposition of such conditions as the sentencing court thinks fit to impose: s 20(1)(a)(iv). It was this condition-imposing power that was relied upon by the primary judge to make the impugned conditions of the recognisance set out below.
Sentences and conditions imposed
On 4 June 2021, Mr Evans was convicted and sentenced for the following six offences:
(a)possessing controlled drugs (cannabis) contrary to s 308.1(1), Criminal Code (Cth);
(b)trafficking controlled drugs (methamphetamine) contrary to s 302.4(1), Criminal Code;
(c)possessing prohibited plant (cannabis) contrary to s 12A(1)(e), Dangerous Drugs Act 1927 (NI);
(d)unauthorised possession of a firearm (air pistol) s 6(1), Firearms and Prohibited Weapons Act 1997 (NI);
(e)possession of an unregistered firearm (air pistol) s 35(1), Firearms and Prohibited Weapons Act;
(f)possession of a prohibited weapon (silencer), s 45A(1), Firearms and Prohibited Weapons Act.
The primary judge made the following orders as relevant to this appeal:
[1]Convictions be entered on each count in the indictment filed on 31 May 2021 and the offender be sentenced to the following:
a.on count 1, commencing on 4 June 2021, six months' imprisonment,
b.on count 2, commencing on 4 September 2021, one years’ imprisonment,
c.on count 3, the offender perform 120 hours of community service on or before 3 June 2023,
d.on count 4, the offender pay a fine of $50,
e.on count 5, the offender pay a fine of $50,
f.on count 6, the offender perform a further 30 hours of community service on or before 3 December 2021.
[2]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:
a.he will be of good behaviour for five years,
b.up to 3 June 2023, he will submit to urine testing as and when required by Norfolk Island Police,
c.up to 3 June 2023, he will not use or consume any border controlled drugs,
d.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:
i.to attend his employment,
ii.report to police under this order,
iii.perform community service as ordered by the Court
iv. in an emergency,
v.other than for a purpose in (i), (ii), (iii) or (iv), 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,
e.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,
f.up to 4 March 2022, he will report to the OIC every Monday, Wednesday and Friday between 7:00am and 5:00pm,
g.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.
Orders 2(e) to (g) operate in support of order 2(d). The CDPP contends that the primary judge was not empowered to make those orders.
This Court is confronted with decisions of intermediate appeal courts in South Australia and Queensland that came to different conclusions based on differences in the State legislation in each.
In Adams v Carr (1987) 47 SASR 205, the South Australian Supreme Court in Banco (von Doussa J, with whom King CJ and Bollen J agreed) found that the State legislative regime for community service orders was too inconsistent as to enforcement in the event of failure to comply with the requirement to perform community service, for the State scheme to be applied under s 20AB, but that such an order could be imposed as a condition of a recognisance under s 20(1) of the Crimes Act: see 212-214. That conclusion relied upon “community service” retaining the meaning of that form of sentencing alternative under the State Act, applying the directions and procedures under that Act: see 214-215. That reasoning is not persuasive in light of the subsequent case next considered. The primary judge did not rely upon the impugned condition being enforced by Territory officials, making it a free-standing regime created by the orders made, without any legislative backing beyond s 20(1) itself.
In R v Shambayati (1999) 105 A Crim R 373, the Queensland Court of Appeal (Pincus, Davies and Thomas JJ) dismissed an appeal against conviction for an offence of intentionally and knowingly threatening an officer of the Australian Taxation Office, but upheld an appeal against sentence insofar as the appellant was convicted and released upon a recognisance under s 20(1) of the Crimes Act that included a condition that he perform 50 hours of community service. In the course of quashing that part of the recognisance, their Honours said (emphasis added):
[15] A community service order cannot be made under the Penalties and Sentences Act 1992 (Qld) without consent of the offender: s 106. However the offence here was a federal offence and the sentence was imposed under the Crimes Act 1914 (Cth). Pursuant to s 20AB(l) of that Act, where a court is empowered under a State law to make a community service order such order may be made in respect of a person convicted of a federal offence. Where that is done the provisions of the State law with respect to that order shall, so far as they are capable of application and are not inconsistent with laws of the Commonwealth, apply in respect of that order by virtue of subs (3). Consequently the learned sentencing judge could have made a community service order but only with the consent of the appellant.
[16] However that is not what her Honour purported to do. She purported to release the appellant upon his giving a recognisance conditioned on the performance by him of community service. Pursuant to s 20 of the Crimes Act, where a person is convicted of a federal offence the court may, if it thinks fit, release the person without passing sentence on him upon him giving security by recognisance or otherwise to the satisfaction of the court that he will comply with certain conditions. Those conditions may include that he will, during a period not exceeding two years that is specified in the order, comply with such conditions as the court thinks fit to specify in the order which conditions may include a period of probation: s 20(l)(a)(iv). The performance of community service is not specifically mentioned in that section but the terms of it are wide enough to include community service. However community service has no meaning or regime for its performance except relevantly under the Penalties and Sentences Act, and s 20, unlike s 20AB, does not incorporate the relevant provisions of that Act. We would conclude therefore that the only way in which community service may be imposed for a federal offence is by an order made pursuant to s 20AB which, as we have mentioned, can only be made with consent of the offender.
[17] The correctness of the conclusion which we have reached was conceded by counsel for the respondent in the present case. However it appears at first sight to be inconsistent with a decision of the Full Court of South Australia in Adams v Carr (1987) 47 SASR 205; 26 A Crim R 372 which permitted community service to be imposed as a condition of release on a federal offence. The relevant legislation in South Australia provided that community service could be imposed only upon discharge upon condition that the offender enter into a recognisance conditioned upon the performance of community service: Offenders Probation Act 1913 (SA), ss 4(l)(f), (2)(d), 5(1)(e). The relevant point in the case was whether the order for discharge under the South Australian Act was an order, in particular a community service order, under s 20AB( 1). It was held that it was. It is unnecessary to consider the reasoning which led to that result. The correctness or otherwise of that decision does not affect the construction here based as it is on the premise that, because a community service order is contemplated by the legislature as one which may be made under s 20AB(l), thereby applying State law under subs (3), the legislature did not contemplate that community service could be imposed as a condition of release under s 20 which does not apply the relevant State provisions.
[18] Accordingly we would conclude that her Honour had no power to make the order which she made releasing the appellant on condition that he perform community service and we would therefore set that order aside.
While the Court in Shambayati declined in terms to criticise the reasoning in Adams, the passages emphasised above identify the key point of difference between the two.
Subsequently, in Dimech v Watts [2016] ACTSC 221, Elkaim J at [13]-[14] quoted and approved the following written submission by the CDPP:
The legislation provides that the only direct mechanism by which a person can be ordered to perform community service following conviction for a federal offence is a sentence pursuant to s 20AB. This, therefore, excludes the possibility that community service could be ordered pursuant to a Commonwealth recognisance release order.
…
The Legislature has explicitly given a power to Section 20AB of the Act which prescribes the mode in which options that are available under State or Territory sentencing regimes should be imposed. This includes the imposition of a Community Service Order. Section 20AB operates to exclude the imposition of a Community Service Order as a condition [of a] recognisance order pursuant to s 20(1)(b). The only conditions that are able to be imposed on a recognisance orders pursuant to s 20(1)(b) are those set out in s 20(1)(a). The construction of the legislation excludes the ability to combine a s 20(1)(b) recognisance order with a state or territory sentencing option.
The CDPP submit that the conditions imposed by the primary judge were in substance home detention orders, being described as such by his Honour, and as such are analogous to the community service conditions in Shambayati, mirroring and being intended to mirror home detention orders that could have been made under s 20AB if such orders were prescribed by regulation.
The primary judge rejected the CDPP’s submission, based upon Shambayati, that it would be inconsistent with s 20AB to use s 20(1)(a)(iv) to impose what was said to amount to a home detention condition in a recognisance release order, and 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. His Honour also rejected an argument 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. His Honour reasoned to the opposite conclusion at [10]-[20].
The CDPP contends that his Honour failed to consider the entire scheme created by Part 1B of the Crimes Act, which includes ss 20(1) and 20AB, and therefore failed to limit the operation of s 20(1)(a) by its proper context. The centrepiece of that argument is the well-known principle in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 per Duffy CJ and Dixon J at 7:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
The CDPP submits that as s 20AB of the Crimes Act explicitly provides the power and mechanism by which State based alternatives to imprisonment, such as home detention, can be imposed on federal offenders, the broad and general power in s 20(1)(a)(iv), as picked up by s 20(1)(b), cannot be relied upon to bypass that regime. On that argument, it is not to the point that there may be differences in sentencing outcomes in different parts of Australia, as that is clearly contemplated by the concept of participating States and Territories. The price of greater consistency within a State or Territory may be some scope for greater inconsistency in different parts of the federation. That was the norm until the commencement of the federal sentencing regime in Pt IB of the Crimes Act over 30 years ago, because all sentencing provisions applicable to federal offenders were those of the States and Territories. Those arguments should be accepted.
A number of secondary arguments are also advanced by the CDPP, but they do not need to be considered by reason of the conclusion reached about the validity of the impugned conditions, such that they are not dispositive: Boenschv Pascoe [2019] HCA 49; 268 CLR 593 per Kiefel CJ, Gageler and Keane JJ at [7]-[8] and per Bell, Nettle, Gordon and Edelman JJ at [101].
If a sentencing option is provided by State or Territory legislation, especially as an alternative or adjunct to imprisonment, the gateway to that option to apply to a federal offender is for that jurisdiction to be prescribed as participating in the s 20AB scheme. This does not stand in the way of more general conditions of a recognisance, provided they do not seek to bypass that scheme and its limitations and conditions.
The reasoning of the primary judge does not adequately take account of the role that the specific power in s 20AB has in confining the operation of the general power in s 20(1)(a)(iv), as picked up by s 20(1)(b). The cases upon which the primary judge relied did not have that context, and therefore no occasion to consider the principle in Anthony Hordern arose. The purpose of s 20AB is to allow for a wider range of sentencing options when such States or Territories both have them available, and choose also to make them available for federal offenders, but also to limit them to that circumstance, especially when it comes to alternatives to imprisonment. That includes the practical aspects of applying such a State or Territory-based scheme, including staffing and enforcement, so long as there is no material inconstancy with the Crimes Act. It is not for a court to bypass the legislative choice as to the steps that must be taken before such a regime becomes available, for to do so is contrary to the principle laid down in Anthony Hordern. Shambayati was correctly decided as aligning with Anthony Hordern, and should be followed, subject to the terms of the legislative regime from time to time. Adams should not be followed.
The above conclusion does not, as might be supposed, determine the outcome of this appeal. It remains a question of characterisation of precisely what it was that his Honour did by making order 2(d), and the facilitative orders 2(e)-(g). While the primary judge considered himself to be imposing an effective sentence of home detention, and erroneously reasoned that to do this was permissible, that is not in fact what the impugned conditions did. Read carefully, his Honour imposed conditions on the recognisance release as was authorised by s 20(1)(a) and (b), not a further or different sentence, which was not authorised except by s 20AB when it applied.
The primary judge, in addition to imposing a commonplace conventional condition to be of good behaviour, and conditions in aid of rehabilitation and prevention of further offending of the nature anticipated by the note to s 20(1), namely urine testing and no drug consumption, which are not challenged, his Honour also imposed a residential and curfew requirement, restrictions on movement beyond his home except for specified purposes, unless approved by police, visitor restrictions, reporting requirements and a requirement to remain on the island unless approved. Just like bail conditions to the same effect, these are not themselves replacements for a custodial sentence, but rather recognisance conditions to facilitate release from custody.
It follows that the appeal must be dismissed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. Associate:
Dated: 17 November 2022
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