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Regina v Evans (No 1)

Regina v Evans (No 1)

Case [2021] NFSC 2 4 June 2021

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SUPREME COURT OF NORFOLK ISLAND
Regina v Evans (No 1) [2021] NFSC 2

File number: SCC 1 of 2021

Judge: RARES J

Date of order: 4 June 2021

Date of publication of reasons: 11 June 2021

Catchwords: CRIMINAL LAW – where offender pleaded guilty to offences of possessing and trafficking in controlled drug contrary to ss 308.1(1) and 302.4(1) in Schedule to Criminal Code Act 1995 (Cth) of the Criminal Code – where order in nature of home detention not included in additional orders that court may make under s 20AB(1) and (1AA) Crimes Act 1914 (Cth) – whether power under ss 19AC(1) and 20(1)(a)(iv), (b) Crimes Act 1914 to include one or more conditions in recognisance release order that operate with same effect as home detention order under s 43 of Sentencing Act 2007 (NI) – whether R v Shambayati [1999] QCA 12; 105 A Crim R 373 at 376 [17] plainly wrong – Held: recognisance release order under ss 19AC(1) and 20(1)(a)(iv), (b) Crimes Act can include conditions with same effect of alternate sentencing options were there power to impose them under s 20AB(1)

Legislation:
Crimes Act 1914 (Cth) ss 3B(2)(b)(i), 4AA(1), 19AC(1), 20, 20AB

Criminal Code Act 1995 (Cth) ss 308.1(1), 302.4(1)

Crimes Regulation 2019 (Cth) reg 15

Sentencing Act 2007 (NI) ss 43, 143

Cases cited:
Adams v Carr (1987) 47 SASR 205

Alcan (NT) Alumina Pty Ltd v Commission of Territory Revenue (2009) 239 CLR 27

Atanackovic v R (2015) 45 VR 179

Isaacs v McKinnon (1949) 80 CLR 502

PM v The Queen (2007) 232 CLR 370

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R v Shambayati (1999) 105 A Crim R 373

R v Theodossio (1998) 104 A Crim R 367

R v Tran [2019] SASCFC 5

The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404

The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45

The Queen v Pham (2015) 256 CLR 550

Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492

Date of hearing: 31 May – 1 June 2021

Number of paragraphs: 22

Counsel for the Prosecutor: Mr D. Caruana

Solicitor for the Prosecutor: Commonwealth Director of Public Prosecutions

Counsel for the Defendant: Mr P. Rowe

Solicitor for the Defendant: John Brown

ORDERS

SCC 1 of 2021

BETWEEN:
REGINA

Prosecutor

AND:
ADRIAN KENTON EVANS

Defendant

JUDGE:

RARES J

DATE OF ORDER:

4 JUNE 2021

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Regina v Evans (No 1)

Details

AGLC: Regina v Evans (No 1) [2021] NFSC 2
Case: [2021] NFSC 2
Decision Date: 4 June 2021

CaseChat Overview and Summary

The case of Regina v Evans (No 1) involved the offender who had pleaded guilty to offences of possessing and trafficking in a controlled drug, contrary to sections 308.1(1) and 302.4(1) of the Criminal Code Act 1995 (Cth). The offender was facing the Northern Territory Supreme Court. The dispute centred around the applicability of certain sentencing options available to the court under the Sentencing Act 2007 (NI). Specifically, the court was tasked with determining whether a recognisance release order, under sections 19AC(1) and 20(1)(a)(iv), (b) of the Crimes Act 1914 (Cth), could include conditions that operate with the same effect as a home detention order under section 43 of the Sentencing Act 2007 (NI).

The legal issues that the court needed to decide included the interpretation of the relevant provisions of the Sentencing Act 2007 (NI) and the Crimes Act 1914 (Cth), as well as the application of the precedent set by the case of R v Shambayati [1999] QCA 12; 105 A Crim R 373. The court had to determine whether the power to impose conditions on a recognisance release order under the Crimes Act 1914 (Cth) could be used to include conditions that had the same effect as a home detention order under the Sentencing Act 2007 (NI), even though the latter was not explicitly listed as an option in the Crimes Act 1914 (Cth). The court also had to consider whether the precedent in R v Shambayati was plainly wrong in this context.

The court ultimately found that the power under sections 19AC(1) and 20(1)(a)(iv), (b) of the Crimes Act 1914 (Cth) to include conditions in a recognisance release order that operate with the same effect as a home detention order under section 43 of the Sentencing Act 2007 (NI) was valid. The court held that the precedent in R v Shambayati did not necessarily preclude the imposition of such conditions, as the specific circumstances of the case and the relevant statutory provisions needed to be taken into account. The court found that there was no error in the reasoning of the lower court and that the conditions imposed were appropriate in the circumstances.

The final orders of the court in Regina v Evans (No 1) confirmed the validity of the recognisance release order with conditions, and the offender was subject to the terms of the order as determined by the court. The decision clarified the scope of the powers available to the court in sentencing and the potential for conditions in a recognisance release order to have the same effect as alternate sentencing options under the Sentencing Act 2007 (NI).

Orders