Nicolai v Majer

[2002] NFSC 2

SUPREME COURT OF NORFOLK ISLAND

Nicolai v Majer [2002] NFSC 2

JOSHUA PATRICK NICOLAI V ANTON PAUL MAJER

SC 5 OF 2001

CORAM:      BEAUMONT CJ.

DATE:           1 JULY 2002

IN THE SUPREME COURT
NORFOLK ISLAND	SC 5 OF 2001

IN THE MATTER OF:	JOSHUA PATRICK NICOLAI Appellant
AND:	ANTON PAUL MAJER Respondent

IN THE SUPREME COURT
NORFOLK ISLAND	SC 6 OF 2001

IN THE MATTER OF:	KIEL ALEXANDER MAY APPELLANT
AND:	DARREN JOHN RATH RESPONDENT

REASONS FOR JUDGMENT

BEAUMONT CJ:

1 July 2002

1. These are appeals, by consent heard together, against the length of a curfew period imposed as conditions of suspension of sentences of imprisonment.  The appellants, then aged 17 and 15 respectively, pleaded guilty to a series of serious charges committed together late one night, when both were intoxicated.  Before the Magistrates, the question of a curfew was raised as a condition of a suspended sentence, and a two year curfew period was stipulated.  To this point of time, a curfew period of a little more than twelve months has already elapsed.

2. On behalf of the appellants, it is submitted, and the Crown does not submit otherwise, that the curfew period imposed was excessive.  In my view, there is some force in the submission provided that another appropriate condition is imposed, in lieu of the balance of the curfew period now remaining.  Having had the benefit of helpful argument from all counsel, in my opinion, such a condition would be a suitable form of community service.

3. As indicated in the course of argument, I think that in the case of each appellant a period of 65 hours over six months service under the supervision of the Director of the Norfolk Island Hospital Enterprise should be imposed.  To this extent, the appeal will be allowed in each case, and I will order the variation of the conditions of recognisance accordingly.

4. I will deal first with Kiel Alexander May.  I order that condition 2 of his recognisance be varied by adding at the end of that condition the words “up to and including 1 July 2002”.  I order that condition 3 of that recognisance be varied by adding at the end of it the words "for two years".  I order that condition 4 be varied by omitting the words "in Selwyn Pine Road" and by omitting the words "at Bounty Lodge Restaurant" down to the words "Ferny Lane" and by further adding at the end of condition 4 the words "for two years".

5. I order that an additional condition, number 5, be imposed as follows:

   “(a)     perform sixty-five hours of community service within six months;

   (b)for this purpose report to David Connell, Director of the Norfolk Island Hospital Enterprise who will arrange supervision of the community service.  Mr Connell to issue a progress report to the Court of Petty Sessions at the conclusion of three months and six months service.”

6. In the case of Mr Nicolai, I order that the same amendment be made to condition 2 and to condition 3 and I impose a new condition 4 which will be in the same terms as condition 5 in the case of Mr May.

7. The full text of the conditions, as so amended, is as follows:

   Nicolai v Majer (SC 5/01)

8. The condition of the within Recognisance is such that if the said JOSHUA PATRICK NICOLAI be of good behaviour for two years and comply with the following –

   1.Pay restitution of $8,863.00 at the rate of not less than $100.00 per week.

   2.Shall remain at home between the hours of 6.00 pm and 7.00 am every night unless accompanied by a parent, up to and including 1 July 2002.

   3.Shall not consume any intoxicating liquor or drugs for two years.

   4.Shall:

   (a)       Perform sixty-five hours of community service within six months;

   (b)For this purpose, report to David Connell, Director of the Norfolk Island Hospital Enterprise who will arrange supervision of the community service. Mr Connell to issue a progress report to the Court of Petty Sessions at the conclusion of three months and six months service.

   then the Recognisance to be void, or else to stand in full force and virtue.

   May v Rath (SC 6/01)

9. The condition of the within Recognisance is such that if the said KEIL ALEXANDER MAY be of good behaviour for two years and comply with the following –

   1.Pay restitution of $8,813.00 at the rate of not less than $100.00 per week.

   2.Shall remain at home, or any other place, in the care of such person as may be nominated by his parents and approved by the Crown between the hours of 6.00 pm and 7.00 am every night unless accompanied by a parent or travelling to or from Bounty Lodge in accordance with these conditions or at Bounty Lodge, up to and including 1 July 2002.

   3.Shall not consume any intoxicating liquor or drugs for two years.

   4.Shall not drive at all unless driving vehicle No. N.I. 5656 to and from his place of residence and his place of employment, and in any event shall not drive at all before 9.30 am or after midnight for two years.

   5.Shall:

   (a)Perform sixty-five hours of community service within six months;

   (b)For this purpose, report to David Connell, Director of the Norfolk Island Hospital Enterprise who will arrange supervision of the community service. Mr Connell to issue a progress report to the Court of Petty Sessions at the conclusion of three months and six months service.

   then the Recognisance to be void, or else to stand in full force and virtue.

I certify that this and the preceding three (3) pages is a true copy of the reasons for Judgment of his Honour Chief Justice Beaumont.

Associate:

Date:    7 August 2002

Appearing for the appellant:                 Mr W Richards (Nicolai)/Mr J Brown (May)
Appearing for the respondent:              Ms T Cowles
Date of Hearing:  1 July 2002
Date of Judgment:  1 July 2002