Regina v Evans (No 1)

In Regina v Evans (No 1), the appellant, an offender on Norfolk Island, pleaded guilty to offences of possessing and trafficking in a controlled drug in contravention of sections 308.1(1) and 302.4(1) of the Criminal Code Act 1995 (Cth). The case raised questions regarding the power of the court to include certain conditions in a recognisance release order that would have the same effect as home detention, an order not explicitly included in the additional orders that the court may make under section 20AB(1) of the Crimes Act 1914 (Cth). The court was tasked with determining whether the power under sections 19AC(1) and 20(1)(a)(iv), (b) of the Crimes Act to include one or more conditions in a recognisance release order could operate with the same effect as a home detention order under section 43 of the Sentencing Act 2007 (NI), and whether R v Shambayati [1999] QCA 12; 105 A Crim R 373 at 376 [17] was plainly wrong.

The court considered the statutory scheme and the purpose of a recognisance release order, which is to regulate the behaviour of the offender while released from serving the balance of a sentence of imprisonment and up to five years after his or her release. The court found that the power to include conditions in a recognisance release order must have regard to punishment of the severity appropriate to the crime of which the offender stands convicted. The court rejected the Crown's submission that the power under sections 19AC(1) and 20(1)(a)(iv), (b) of the Crimes Act could not include conditions with the same effect as alternate sentencing options, including home detention, and held that such conditions could be included in a recognisance release order.

The court ordered that the offender be released from imprisonment immediately and comply with the following conditions: (1) be of good behaviour for five years; (2) submit to urine testing as required by Norfolk Island Police; (3) not use or consume any border controlled drugs; (4) reside at the current address, with restrictions on leaving the house and presenting at the door when attended by police; (5) approve visitors in writing by the officer in charge of Norfolk Island Police and, if not authorised, be supervised by Amanda May; (6) report to the officer in charge of Norfolk Island Police on specified days and times; and (7) not leave or attempt to leave Norfolk Island without the prior written authorisation of the Commonwealth Director of Public Prosecutions, subject to internal search by x-ray or ultrasound if granted such authorisation. The court also ordered the offender to give security of $10,000 with one surety by recognisance.