Regina v Evans (No 2)
[2021] NFSC 3
•4 June 2021
SUPREME COURT OF NORFOLK ISLAND
Regina v Evans (No 2) [2021] NFSC 3
File number: SCC 1 of 2021 Judge: RARES J Date of judgment: 4 June 2021 Catchwords: CRIMINAL LAW – sentencing – guilty pleas – where offender has no prior criminal record – where offender charged with trafficking controlled drug but bail dispensed with and after release committed further offences of possession and trafficking controlled drugs – whether offender expressed contrition for offending conduct – where offender spent 14 days in custody on remand and subject to bail conditions amounting to home detention for two years – where de facto partner reliant on defendant for emotional and medical support – where offender rehabilitated during remand
CRIMINAL LAW – sentencing under Pt IB Crimes Act 1914 (Cth) – guilty pleas – where offender guilty of possession of and trafficking in controlled drugs contrary to ss 308.1(1) and 302.4(1) of Sch to Criminal Code Act 1995 (Cth) of Criminal Code – whether full time imprisonment or immediate recognisance release order under ss 19AC(1) and 20(1) of Crimes Act 1914 appropriate – whether appropriate to include conditions amounting to home detention in recognisance release order – offender sentenced to term of imprisonment but released immediately with security by entering recognisance release order
CRIMINAL LAW – sentencing under s 5 Sentencing Act 2007 (NI) – guilty pleas – where offender guilty of possessing a prescribed plant contrary to s 12A(1)(e) Dangerous Drugs Act 1927 (NI) – where two further offences of using and consuming controlled drug contrary to s 302A(1) Criminal Code 2007 (NI) taken into account – where offender guilty of possession of firearm without registration or licence contrary to ss 6(1) and 35(1) Firearms and Prohibited Weapons Act 1997 (NI) – where offender guilty of possession of silencer without authorisation contrary to s 45A(1) Firearms and Prohibited Weapons Act – offender sentenced to enter into bonds, perform community service and pay fines
Legislation: Crimes Act 1914 (Cth) ss 4AA(1), 16A, 16B, 19, 20
Criminal Code Act 1995 (Cth) ss 302.1(e), 302.4(1), 302.5(1), 308.1(1)
Criminal Code Regulations 2002 (Cth) Sch 3Bail Act 2005 (NI) ss 10(2), 11(1)(a), 12
Criminal Code 2007 (NI) ss 284(8)
Dangerous Drugs Act 1927 (NI) s 12A(1)(e)
Firearms and Prohibited Weapons Act 1997 (NI) ss 6(1), 35(1), 45A(1), 45D, Sch 2
Interpretation Act 1979 (NI) s 12A
Sentencing Act 2007 (NI) ss 5, 13, 15(7), 23, 26, 43, 143
Cases cited: Adams v The Queen (2008) 234 CLR 143
Cameron v The Queen (2002) 209 CLR 339
Putland v The Queen (2004) 218 CLR 174
R v Lott [2004] NSWSC 373
R v Leroy [1984] 2 NSWLR 441
Rajabizadeh v The Queen (2017) 268 A Crim R 46
Regina v Evans (No 1) [2021] NFSC 2
Siganto v The Queen (1998) 194 CLR 656
Weininger v The Queen (2003) 212 CLR 629
Wong v The Queen (2001) 207 CLR 584
Date of hearing: 31 May – 1 June 2021 Number of paragraphs: 110 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 ORDERS THAT:
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.
3.The offender give security by the promise to pay $5,000 with one surety by recognisance for the sentence imposed for counts 3 and 6 on condition that:
(a)he appear before the Court if called on to do so during the period of two years,
(b)he be of good behaviour for the period of two years,
(c)up to 3 June 2026, he submit to urine testing as and when required by Norfolk Island Police,
(d)up to 3 June 2026, he not use or consume any border controlled drugs.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
Adrian Kenton Evans (the offender) has entered pleas of guilty to the six counts in the indictment filed on 31 May 2021. Those counts are as follows:
(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),
(3)On 12 April 2019 at the Island, he possessed a prescribed plant, cannabis, contrary to s 12A(1)(e) of the Dangerous Drugs Act 1927 (NI) (the Island possession count),
(4)On 12 April 2019 at the Island, he possessed a firearm, namely a .177 calibre Gamo brand model PT80 air pistol, and was not authorised by a licence or permit to do so, contrary to s 6(1) of the Firearms and Prohibited Weapons Act 1997 (NI) (the licence count),
(5)On 12 April 2019 at the Island, he possessed a firearm, being the air pistol, and it was not registered in his name, contrary to s 35(1) of the Firearms Act (the registration count),
(6)On 12 April 2019 at the Island, he possessed a weapon, namely a Hushpower brand .22 IV model suppressor, and was not authorised to do so, contrary to s 45A(1) of the Firearms Act (the silencer count).
On 1 June 2021, the offender signed a form 5, prescribed under s 143(1)(a) of the Sentencing Act 2007 (NI), in which he asked that two further offences, which he admitted, of using and consuming a controlled drug, namely, first, amphetamine and methamphetamine between 17 and 23 April 2019 and, secondly, methamphetamine between 5 and 9 May 2019, contrary to s 302A(1) of the Criminal Code 2007 (NI) (the use offences), be taken into account when I pass sentence for the Island possession count.
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 (the federal counts). Each of counts 3–6 (the Island counts) carries a maximum penalty of two years’ imprisonment and or, in the case of the licence, registration and silencer counts, 50 penalty units ($5,000), or in the case of the Island possession count and the use offences, 20 penalty units ($2,000). At the times of the offending, a penalty unit under s 4AA(1) of the Crimes Act 1914 (Cth) was $210 and under s 12A of the Interpretation Act 1979 (NI) was $100.
I will explain the circumstances of the offender’s pleas of guilty before turning to the sentencing considerations for the Island counts and the federal counts: see s 19 of the Crimes Act. I have based the following summary of the facts on the agreed statement of facts as supplemented by the further matters in evidence and made known in the parties’ submissions: Weininger v The Queen (2003) 212 CLR 629 at 635–638 [16]–[24] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
The counts
The federal possession count – Count 1
On 19 July 2018, at about 4:00pm, Norfolk Island police executed a search warrant at the offender’s residence. The police located, in various places in the residence, and seized, a considerable quantity of plastic bags containing green vegetable matter, sticks and leaves as well as a tin and drug smoking paraphernalia.
The green vegetable matter was found, on analysis by the National Measurement Institute, to be cannabis. The total combined weight of the cannabis seized was 1,228 grams. However, about half of the seized cannabis included some twigs, sticks and matter that the Crown accepted had no use as a narcotic substance.
The offender admitted during the search that the seized items belonged to him. He told the police that he had procured and cultivated the seeds, and dried and packaged the cannabis, for personal use, for pain relief for both himself and his partner, Amanda May.
Despite the substantial amount of cannabis that the police seized during the execution of the warrant, they took until 2 January 2019 to file an information charging the offender with trafficking in cannabis contrary to s 284(8) of the Criminal Code (NI). He was summonsed to appear before the Court of Petty Sessions on 29 January 2019. On that occasion, the Chief Magistrate remanded him to appear again on 16 April 2019. The Bail Act 2005 (NI) deems that the effect of an order which makes no specific order or direction in respect of bail, is that the Court made a decision to dispense with bail (ss 10(2), 12). The Bail Act provides that, because bail was deemed to be dispensed with, the offender was entitled to be released from custody and remain at liberty in respect of the offence (s 11(1)(a)).
On 3 December 2018, the offender participated in an interview with police in which he told them that the seized material was of the cannabis indica strain. He told the police that he believed that the indica strain was grown for its lower tetrahydrocannabinol levels for use as pain relief and was not illegal. The offender told police that he suffered from bipolar disorder, had chronic pain in both knees and that his partner suffered from spinal stenosis and fibromyalgia. The offender told police that, in around 2015, he had read a newspaper article on the medical use of marijuana and then researched how to process the plant matter into a consumable product for pain relief. This included boiling it down into oil or adding it to baked foods and smoothies. The offender denied to the police that he had any intention to sell the cannabis.
Subsequently, the police obtained an expert opinion from Dr James Robertson, the director and a professorial fellow of the National Centre for Forensic Studies, as to cannabis species and the information that the offender had given the police. Dr Robertson opined that, despite historical debates, it is now accepted that the genus ‘cannabis’ has a single species, namely ‘sativa’.
As I will explain, the offender was not committed for trial on the charge under s 284(8) of the Criminal Code (NI), but instead on a count that charged him under s 302.4(1) of the Code with trafficking the same quantity of cannabis (the withdrawn trafficking count) based on the definition of ‘trafficking’ in s 302.1(e) of possession with intent to sell any of the substance and the trafficking count.
The trafficking count – Count 2
On 9 April 2019, at about 2:15pm, the offender arrived at Norfolk Island International Airport on a flight from Brisbane. He was a person of interest for internal concealment of illicit drugs. He had ticked “yes” to a question on his incoming passenger card as to whether he was bringing fresh food into Australia and Australian Border Force officers x-rayed and searched his baggage. Nothing of interest appeared in his baggage, but the offender exhibited signs of agitation and nervousness and appeared to be sweating. The police cautioned him prior to detaining him in order to perform an external search, which also did not reveal any items of interest. The police took the offender to the Norfolk Island police station. At about 7:17pm, the Chief Magistrate granted the police a detention order that allowed the offender to be detained for 48 hours. The police then took him to the Norfolk Island Health and Residential Aged Care Service centre.
On 10 April 2019, at about 7:52pm and in the presence of his legal practitioner, the offender signed consent forms at the Service centre to undergo an x-ray and ultrasound scan. The x-ray of the offender’s abdomen revealed a foreign object in his bowel. The ultrasound of the same area yielded an inconclusive result.
On 11 April 2019, at about 8:10am, the offender passed a package during a bowel motion that a staff member at the Service centre retrieved. The police seized the retrieved package. The police arrested the offender later that morning and took him to the police station watch house where, at about 8:50pm that evening, he declined the opportunity to participate in an interview.
The package that the offender passed in the bowel motion was cylindrical in shape, about 165 mm long and 25 mm wide. It consisted of multiple layers, including condoms, electrical tape and clip seal plastic bags. The package contained an off-white colour crystalline substance that weighed 26.5 grams. Analysis by the National Measurement Institute found that the substance was methamphetamine with a purity of 73.4%, the pure weight being 19.4 grams.
The Island counts – Counts 3–6
On 12 April 2019, at about 4:20pm, police executed search warrants at the offender’s residence and at a shed at another location in the presence of Ms May and his legal representative. The police found nothing of interest at the shed. However, they located and seized from the offender’s residence the following:
·the air pistol, which they located in pieces in the lounge room, the subject of the licence and registration counts (counts 4 and 5),
·the silencer, which they also located in the lounge room, the subject of the silencer count (count 6),
·one clear vacuum sealed bag, which they located in the garage, containing green vegetable matter that was concealed inside a small bucket covered with a lid inside a larger lidded bucket, that became the subject of the Island possession count (count 3),
·two sets of digital scales, and
·a yellow glass pipe.
The National Measurement Institute analysed the green vegetable matter found at the offender’s residence on 12 April 2019 and determined that it was cannabis weighing 54.7 grams. The Australian Federal Police Forensic Firearms and Toolmark Examiner examined the air pistol and silencer and found that:
·the air pistol conformed to the definitions of both an ‘airgun’ and ‘pistol’ in s 3 of the Firearms Act,
·the silencer was a prohibited weapon within the definition in item 32 of Sch 2 of the Firearms Act.
Police checks of the Norfolk Island Firearms Register revealed that:
·the offender did not hold a licence or permit authorising him to possess the air pistol,
·the air pistol was not registered to the offender.
However, the air pistol was not functional. It was in pieces when seized and its rotating magazine was missing, as were possibly other parts needed to make it function. Thus, while the offender was in possession of the air pistol that fell within the statutory definition of a firearm, it was in a condition in which it could not function as a firearm.
At the same time, the police seized six other, apparently functional, firearms, being four air rifles and two shotguns. Those firearms were all registered to the offender and he held licences or permits for them. The silencer was capable of being fitted to two of the offenders’ seized .22 rim fire rifles.
The use offences
A random urine drug screen on 22 April 2019 revealed that the offender had used and consumed amphetamine and methamphetamine between 17 April 2019 and then, being the first use offence. Subsequently, on 9 May 2019, a random urine drug screen revealed that he had used methamphetamine, being the second use offence (I note that there is a typographical error in the agreed facts where the date of the first test was incorrectly given as 22 May 2019).
The initial bail undertakings
On 17 April 2019, the offender was granted bail on conditions that included that he submit to random urine drug screening as required by the police and that, commencing on 18 April 2019, he report daily to police between 8:00am and 4:00pm.
On 14 May 2019, the offender signed a bail undertaking, with his mother as surety, that, among other restrictions, required him to:
·reside at his mother’s house unless otherwise authorised in writing by the Commonwealth Director of Public Prosecutions (CDPP),
·not leave the house between 9:00pm and 6:00am,
·submit to random urine testing as required by the police,
·report daily to the officer in charge of the police station (OIC) between 8:00am and 4:00pm or as authorised by the CDPP,
·not use or consume controlled drugs,
·not to leave his mother’s residence unless authorised in writing by the OIC and be accompanied by his mother or another person whom the OIC authorised,
·have all visitors pre-approved or authorised in writing by the OIC and, unless otherwise authorised by the OIC, supervised by his mother,
·receive visits only from his partner, Ms May, and his immediate family and if approved by the OIC.
Background to the offending
Between about October 2018 and late February 2019, the offender became acquainted with Zara Muir at the home of Ryan Christian. She became Mr Christian’s girlfriend during that period and lived with him there until their relationship ended in late February 2019. Ms Muir gave a statement to police in which she disclosed that, during their relationship, Mr Christian introduced her to “ice” or “meth”, being common names for methamphetamine, which he prepared in a glass pipe before lighting and inhaling it.
Ms Muir said that the offender would come to Mr Christian’s home where all three of them would smoke ice together. She said that ice was expensive on the Island, costing about $250 a point, being one tenth of a gram. Ms Muir recalled that, after she met the offender, her use of ice increased from one point to two or three points per day. She ceased using ice after her relationship with Mr Christian ended.
Ms Muir said that on one visit by the offender to Mr Christian’s house they discussed a plan that involved the offender, Mr Christian and Ms Muir travelling to the Gold Coast to buy “an eight ball of ice”, which apparently is a reference to an eighth of an ounce of methamphetamine. She said that the offender told her that they would “fill her up” with drugs and that he also would put drugs in his anus. The offender said to her that he intended to sell the drugs for $250 a point, which, I infer, would occur after they returned to the Island.
The offender’s interviews with police
On 15 and 16 May 2019, the offender participated in interviews with police at the Norfolk Island police station, at which his legal representative was in attendance. The offender told police the following during the interviews.
The offender said that he first began using ice in about 2015 after he lost his job in the mines and used about two to three grams per week. In 2016, he decided to return to the Island to live permanently and to get off the ice. He said that he had no ice for his first five months following his return and felt refocussed. He was in a good place, working regularly, with more drive and ambition and was taking his medication for bipolar, anxiety and depression.
The offender said that, then, a friend, with whom he used to smoke ice at the Gold Coast, visited the Island and offered him a smoke. He took up that invitation thinking it would not hurt and about one month later, after he was offered another smoke, he purchased some methamphetamine. From then on, every time methamphetamine arrived on the Island on a ship, he bought some, usually four points at a time, and smoked it. He told police that he was addicted to meth and enjoyed “the buzz”.
He said that meth would come in to the Island on almost every ship from New Zealand and from people carrying it internally through the airport. He said that, once the supply chain from the ships finished, the only way that meth could be brought onto the Island was internally via the airport. The offender said that people who brought meth onto the Island internally through the airport sold it and “made a heap of cash”. He said that meth cost $10 a point on the Gold Coast but $250 a point on the Island.
On 23 March 2019, the offender left the Island and travelled to the Gold Coast where he worked driving bobcats and towing boats each year at an annual carnival of Surf Life Saving Australia. He earned about $2,500 and spent about 16 days at the Gold Coast. Until 30 March 2019, he stayed at a hotel and then with friends.
Once at the Gold Coast, the offender made contact with an old friend to purchase meth. He said that he met with a person named Terry who arranged for him to go to a hotel to buy meth. He told police that he bought one ounce (being about 28.35 grams) of meth which was in a plastic freezer bag and two grams extra to smoke. He paid the dealer $2,600 in cash. The offender smoked some meth with the dealer before returning to his accommodation. The offender said that one point of meth is one tenth of a gram, and that it is usually a single dose. He said that he used about three points of meth a night while staying on the Gold Coast. The offender said that he used meth only by swallowing or smoking it.
While at the Gold Coast, the offender purchased plastic clip seal bags from a supermarket and electrical tape from a hardware store. He put the plastic freezer bag containing his purchase of meth into two clip seal bags which he rolled into a single package. He used the electrical tape to seal and round the ends of that package. He then placed the package into an unrolled condom and wrapped a second condom over it from the opposite end before tying it off. He may have wrapped a third condom over the others, but he was not sure. He then placed the meth into a freezer to stop it melting.
On 22 April 2019, after testing positive for amphetamine and methamphetamine he told police that he thought that the meth may have been detectable from his having smoked it for the two weeks on the Gold Coast. He told police that, prior to the positive test for methamphetamine on 9 May 2019, he had found a shard (or about one third of a point of meth) in a Berocca tube in his shed. He said that he put it on his finger and contemplated what to do with it before putting it on his tongue.
Subsequent court history
On 9 October 2019, the offender signed another bail undertaking with his mother as surety. This occurred after he obtained employment and wished to live with Ms May. The new bail undertaking imposed similar conditions and restrictions except that he was now:
·to live with his partner at his father’s address unless otherwise authorised by the CDPP,
·to report to the OIC daily except for Sundays,
·be supervised by Ms May instead of his mother during visits and when leaving the residence,
·able to attend unaccompanied at his place of employment,
·prohibited from contacting two likely witnesses unless authorised in writing by the OIC.
On 16 July 2020, following his committal for trial, the offender signed a bail undertaking in similar terms to the 9 October 2019 one. He has remained bound by those conditions up to the present time.
On 11 December 2020, the offender indicated that he would enter pleas of guilty to the four offences that he committed against Island statutes in the Island counts and I listed what were counts 1 and 2 in the then indictment, being the withdrawn trafficking count and the trafficking count, for trial before a jury commencing on 31 May 2021.
On 27 May 2021, the offender indicated that he would enter pleas of guilty to what are now the federal counts, after the Crown stated that it would file a notice declining to proceed further in the prosecution of the previous indictment and indicated that it would prefer a new indictment in the same terms except that it would substitute as count 1 the federal possession count, in place of the, more serious, withdrawn trafficking count. The offender then indicated that he would enter pleas of guilty to all six counts when he was arraigned, as he did on 31 May 2021.
The offender’s circumstances and pre-sentence report
The offender has no criminal record. He is 49 years old and lives with his partner, Ms May, at his father’s home. He is building a cottage on his father’s land which he intends will be a home for himself and his partner. He was educated to year 10 level. The offender is currently employed full-time as a carpenter by a business owned by Garry Parsons on the Island. Mr Parsons described him to Stephen Kleboe, a senior community corrections officer with Corrective Services NSW, as “a valued and diligent employee”.
Mr Kleboe prepared a pre-sentence report dated 27 May 2021 on the basis that the offender was pleading guilty only to the Island counts and had not entered pleas to the trafficking count or the withdrawn trafficking count. The offender told Mr Kleboe that he regretted his decision making and prior drug dependency. The offender denied ever having been involved in the trafficking or supply of illicit substances. He said that he could not have been “trafficking drugs” as he was moving the “ice” from one location in Australia to another.
Mr Kleboe recorded that the offender denied any knowledge of the air pistol, saying that it was found in shared accommodation. However, as both counsel suggested, Mr Kelboe must have been under a misapprehension because the offender was pleading guilty to the licensing and registration counts and had not previously or since suggested any ignorance of the air pistol. It may be that, because the air pistol was not functional, the offender told Mr Kleboe that he did not know why he was charged in relation to it. The offender said that he had a responsible attitude to firearms and always ensured that all of his firearms were registered and, in fact, was in possession of registered firearms when the air pistol was found. He admitted owning the silencer but said that he was not aware that it was illegal to own one on the Island.
The offender told Mr Kleboe that he grew the cannabis found at his home intending to extract oil for medicinal purposes. Both he and his partner said to Mr Kelboe that each suffered chronic pain at the time of the offending in the federal possession count.
The offender told Mr Kleboe that he began using meth in 2015 and was dependant on it at the time of his offending in April 2019. He claimed that the ice that he was attempting to smuggle onto the Island was for personal use and that his strategy made financial sense because of the price differential for it between the Gold Coast and the Island. He claimed that it was common practice for Islanders to stockpile cheaper goods brought from the mainland.
Ms May told Mr Kleboe that she had no idea that the offender was addicted to ice in April 2019 and that, while initially she had been shocked to learn of his addiction, she had worked hard with his psychologist to rehabilitate him. The offender said that Ms May’s psychological intervention and support had been integral in his recovery from his addiction, that he had been “clean” for the two years since the 9 May 2019 test and that he is motivated to remain so.
Mr Kleboe noted that the offender has diagnoses of, and is medicated for, bipolar disorder, anxiety and depression. Mr Kleboe said that the offender’s three diagnosed mental conditions and childhood trauma may have underpinned his use of illicit substances, but the overall role of those conditions in his offending was unclear.
Mr Kleboe said that, although the offender expressed regret for breaking laws, “he appeared to largely see himself as the aggrieved party in these matters”. Mr Kleboe said that the offender was willing to undertake intervention and community service and that he had cooperated fully in the preparation of the pre-sentence report. He said that the offender had been assessed as having a low risk of reoffending and would be a suitable person to undertake community service work.
The medical reports
Dr Kate Lemerle, the offender’s treating psychologist and accredited clinical neuro-psychotherapist, first saw him when he was in custody on 13 and 14 April 2019. She prepared seven reports between then and the hearing that detail the offender’s psychological circumstances and the progression of his response to her treatment of him. In her second report of 13 May 2019, Dr Lemerle noted that he recognised that he had “a problem” with his use of methamphetamine. She recorded a history of the offender suffering a number of adverse childhood events or traumas, coupled with his use of licit (such as alcohol) and illicit substances beginning with alcohol at the age of eight and continuing to the times of his offending. Dr Lemerle did not opine about any effect of the offender’s bipolar disorder, depression or anxiety on him or his offending. I infer that, given this history of trauma, some of his diagnosed conditions may have developed as a result.
She also hypothesised that, as a direct descendent of John Adams, one of the original, and longest surviving, mutineers on HMS Bounty in 1789, the offender had neurobiological trauma and a psychological inheritance that affected his use of illicit substances and that he had intergenerational trauma that, untreated along with other emotional and psychological factors, had predisposed him to engaged in substance abuse. I have not given much weight to this because it was an hypothesis.
She said in her 12 August 2019 report that he had “expressed sincere remorse for his behaviour and as far as I can tell exhibits good insight into the consequences of his actions personally, for his family, and within the small community of Norfolk Island”.
By December 2019, Dr Lemerle reported that the offender had completed 21 sessions of neuro-psychotherapy and he had engaged actively in that therapy with her every seven to ten days. She said that Ms May also supported him in his recovery and rehabilitative efforts. In that report, Dr Lemerle said that the offender had recently commenced full time work “which has dramatically lifted his mood and self esteem” and that his previously difficult relationship with his father and step-mother had improved significantly.
Dr Lemerle noted that the Island does not have specific services or programs available for treating persons with addiction problems, or who present with other risk factors such as the Sydney based Odyssey House drug and alcohol rehabilitation program. She mentioned in several reports that the offender is thinking of, and developing, plans to establish on the Island a community-based drug education service for young persons in collaboration with relevant professional services that might include some with training in youth welfare. However, there is no greater detail or material before me of what the offender has done or intends in respect of those plans.
In her 31 May 2020 report, Dr Lemerle said that the offender had by then had 27 sessions of psychotherapy. She said that he had continued to maintain that his use of substances was only to mitigate pain from his long-term problems with both knees, that had been repaired successfully last year, and to regulate his emotions that were unstable for the reasons she had detailed in her earlier reports. She opined that his perseverance with therapy and its effects had “shown a deep determination to recover from the addiction and heal the psychological wounds underlying it”.
Dr Lemerle’s most recent report of 31 May 2021 recorded that the offender had had only three more sessions of psychotherapy in the preceding 12 months. She said that Ms May had been present at five of the total 30 such sessions since he began seeing Dr Lemerle on 13 April 2019. She opined that his “progress is admirable and a testament to his commitment to the recovery process”. The offender’s counsel explained that Dr Lemerle had told him that the offender had also accompanied Ms May to some of her treatment sessions with Dr Lemerle and on occasion had visited her but not for psychotherapy.
In addition, last week Dr Samuel Jones provided health summary sheets for both the offender and Ms May. He had only treated the offender as his general practitioner for three months. Dr Jones recorded that the offender was taking regularly his prescribed medicines for bipolar disorder and anxiety or depression. Dr Jones also noted that Ms May is taking prescribed medicines for chronic pain, Sjogren’s syndrome, fibromyalgia and a major depression. Dr Jones said that the offender is Ms May’s primary carer and that she is concerned about her future care, if and when she becomes bed-ridden suddenly from flare ups of her fibromyalgia or Sjogren’s syndrome.
The referees
The offender tendered three character references, one from Ms May, one from a friend, Terence Grube, and one from his employer, Mr Parsons.
Ms May holds a degree in social science and spent her professional life working in communities, including indigenous ones, with clients who had drug and or alcohol addictions. She explained how she has tried to work with Dr Lemerle and the offender in assisting him to rehabilitate from his addiction to methamphetamine. She said that she knows that he is remorseful and accepts full responsibility for his actions and behaviour. Ms May wrote of the “incredible change and personal growth” and improvement in health he had experienced in the last two years. She also noted that he takes care of her because of her own health conditions.
Mr Grube had known the offender all his life and wrote of his sports prowess, trade qualifications and generosity in helping other members of the community. I am not certain from his letter whether Mr Grube was aware of the full nature of all the offending, but he expressed the view that the offender could be trusted and responsible for his actions so as to live within the law. He also expressed a belief that the offender was remorseful.
Mr Parsons was aware of the trafficking count and that the offender was facing other counts. They had known each other since the offender was a young child. Mr Parsons said that they were close personal friends and that the offender had always been of good character. He said that the offender had worked for his building and maintenance business on and off for the past 15 years. When he returned to the Island four years ago, Mr Parsons engaged him as a leading hand in the building team. He said that the offender was reliable and “a great leader for the young carpentry apprentices” who worked in his business. Mr Parsons also said that the offender had expressed deep regret for his action and took full responsibility for what he had done.
Consideration
A sentence for each of the federal counts must comply with s 16A(1) of the Crimes Act by being of a severity appropriate in all of the circumstances of the offence. In arriving at such a sentence, s 16A(2) requires the Court to take into account certain matters as are relevant and known to the Court: Weininger 212 CLR at 635–638 [16]–[24], but these are not a comprehensive list of all matters that may be relevant to arrive at a federal sentence: Putland v The Queen (2004) 218 CLR 174.
Relevantly, it is necessary under s 16A(2) to take account of the nature and circumstances of each offence, the degree to which the offender has shown contrition (or remorse) for the offence in any manner, each plea of guilty, its timing and the degree to which that had any benefit to the community or witnesses to the offence, the degree to which the offender cooperated with police in investigating the or other offences, the deterrent effect of any sentence on both the offender and others, the need to ensure that the offender is adequately punished for the offence, his character, antecedents, age, means and physical or mental condition, the offender’s prospects of rehabilitation and the probable effect on family members or a de facto partner, such as Ms May, or dependants (s 16A(2)(a), (f), (g)–(j), (k)–(m), (n) and (p), (4)(a)). It is also necessary to have regard to the nature and severity of the conditions that may be imposed on, or apply to, the offender under the sentence (s 16A(3)), any Island sentence (cf s 16B of the Crimes Act) and the totality of all of the sentences to be imposed on the six counts.
The Sentencing Act sets out the matters that I must take into consideration when sentencing you on the Island counts. Part IB of the Crimes Act 1914 (Cth) repeats some of those and adds others.
The Sentencing Act specifies the only purposes of a sentence as being one or more of, first, to punish the offender to an extent or in a way that is just in all the circumstances, secondly, to provide conditions that will help him or her to rehabilitate, thirdly, to discourage him or her and others from committing the same or similar offences, fourthly, to make clear that the community does not approve of conduct of that kind and, fifthly, to protect the Island community from the offender (s 5(1)).
Background considerations
You were 47 years old at the time you committed the offences in the trafficking count, the Island counts and the use offences. You are now 49. You have two adult sons who live on the mainland and you live with Ms May on your 80 year old father’s property to whom you and she provide support, as Ms May said in her reference. You had no prior criminal record before July 2018 and this is the first occasion on which a court will sentence you. However, you had been charged in early 2019 with the Island offence of trafficking in the large amount of cannabis found at your premises on 19 July 2018, when you were 46. On 29 January 2019, the Court of Petty Sessions had remanded you to appear again on that charge on 16 April 2019. The Chief Magistrate had not required you to enter a bail undertaking, which indicated that the Court placed some confidence in you as a responsible citizen and left you free to pursue your life without restrictions, including being able to attend the annual surf life-saving carnival on the Gold Coast.
In my opinion, your conduct in engaging in each of the offences in April and May 2019 is the more significant because you committed them when you knew that you were already facing a serious charge of trafficking in the seized cannabis. I consider that conduct reflects on your blameworthiness and is an aggravating factor for each of the Island counts (see s 5(2)(g) of the Sentencing Act) as well as the trafficking count.
A plea of guilty indicates that an offender accepts responsibility for his or her conduct and is willing to facilitate the course of justice. These are matters that the Court can take into account in mitigating any sentence that it imposes: Cameron v The Queen (2002) 209 CLR 339 at 343 [11]–[12] per Gaudron, Gummow and Callinan JJ, applying Siganto v The Queen (1998) 194 CLR 656 at 663–664 [22] per Gleeson CJ, Gummow, Hayne and Callinan JJ (see too s 5(2)(l) of the Sentencing Act, s 16A(2)(g) of the Crimes Act).
You pleaded, or indicated you would plead, guilty to the Island counts at your committal in July 2020. It is also relevant that, on 27 May 2021, you indicated you would plead guilty to the federal counts as soon as the federal possession count was preferred in substitution for the more serious, withdrawn trafficking count: Cameron 209 CLR at 346 [23]–[25]. However, until then you had maintained your plea, at the committal, of not guilty to the trafficking count.
You indicated that you would enter the guilty pleas for the Island counts on 11 December 2020, and for the use offences that were still pending in the Court of Petty Sessions on 31 May 2021, when you agreed that they could be taken into account in sentencing on the Island possession count. There is a utilitarian benefit from that. Your pleas of guilty have spared the community the expense of a contested trial and evidence your acceptance of responsibility for your conduct, including in respect of the use offences. However, the Crown case on each of those counts was strong. In the context of the overall time that you have been facing the charges, the pleas came very late after you were charged. Mr Kleboe’s assessment that, while you expressed regret for breaking the laws, you “appeared to largely see [your]self as the aggrieved party in these matters”. I consider that the pleas, other than to the federal possession count, are also of limited weight as evidence of remorse on your part.
I consider that you regret having been caught breaking the law and have accepted that you are guilty of doing so as your pleas recognise. But, I am not satisfied that you are remorseful in the sense of having insight and regret for your offending conduct. So much is clear from your continuing to see yourself as the aggrieved party, as Mr Kleboe assessed, rather than the wrongdoer. So, while I have given some weight to the utilitarian benefit in your pleas, the major one of which, involving the trafficking count, was very late, I have given your pleas overall somewhat less weight than I would have had I been satisfied that you were remorseful in the sense I have stated above.
However, in assessing your contrition for the federal possession count, the Crown accepted, as I do, that you demonstrated genuine remorse in cooperating fully with the prosecution, and I have given this significant weight.
I have also had regard to your personal circumstances to which I have referred above, particularly the impact of the emotional traumas you have experienced over your lifetime that Dr Lemerle considered had led to your use of and addiction to illicit substances.
None of the offences for which I must sentence you involve a victim. However, the whole community is adversely affected by the trade in, and availability of, illegal drugs, and the impact of drugs of addiction on addicts and their loved ones. There is real potential in an island or isolated community, like this, for great harm to be caused from trafficking in and selling drugs like methamphetamine. That drug, in particular, is not only addictive but also the cause of violent and abusive behaviours. Possession and trafficking of illegal drugs is, for that reason, a serious crime.
You clearly have tried to turn your life around and to rehabilitate yourself by undergoing therapy with Dr Lemerle from April 2019. You have ceased to use any illicit substances since the second use offence, as verified by your results from the random urine screening tests over the last two years and by taking up your employment. These actions are commendable, because of the personal benefit for your own life and that of your loved ones such as your mother and Ms May, who have been present during the hearing. It also may provide an example to the community.
Your previous good character carries less weight in respect of your crimes involving drugs: R v Leroy [1984] 2 NSWLR 441 at 446G–447A per Street CJ, with whom Glass JA and Yeldham J agreed.
You spent 14 days in custody on remand and have been subject to stringent bail conditions. However, you brought those onerous bail conditions on yourself, as the price of remaining out of jail on remand. Those particular conditions were imposed only after you committed the use offences immediately following being granted bail in April 2019.
One purpose of imprisonment is so that a prisoner can rehabilitate himself or herself. As experience has shown, that purpose is very hard to achieve through prison because of the harshness of life behind bars. To your credit, you have worked on rehabilitating yourself, perhaps in part due to the limitations that your bail conditions placed on you. Nonetheless, it is important to recognise that those limitations have operated as a serious restriction on your liberty in a similar way to a home detention order under s 43 of the Sentencing Act and represented a significant loss of your ordinary freedom over the last two years. I have taken these matters into account in considering overall the sentences that I must impose on you (s 5(2)(m) of the Sentencing Act).
You currently have debts of over $45,000 and limited assets. That means that imposition of any fine of substance would be ineffective.
The Island counts – Counts 3–6
While it is convenient to deal with the Island counts first, I have considered the total effect of each of the sentences that I will impose in arriving at the final outcome for both the Island and federal counts.
The Island Possession count – Count 3
The maximum penalty for the Island possession count is two years imprisonment and or a fine of $2,000. The Crown accepts that you intended to produce cannabis oil or resin from the usable cannabis seized on 19 July 2018 for the purpose of pain relief for only yourself and Ms May and that you had no intention of selling any of it.
When the police executed the search warrant on 12 April 2019 and found the 54.7 grams of cannabis hidden in buckets in your garage, you had already been charged with trafficking cannabis. Therefore, you knew that possession of cannabis was, or could be, illegal. You could have obtained treatment for your knee pain, as you later did, or prescription, or other commercially available, medications.
Your conduct showed that you were not prepared to respect the law. The prevalence of the offence of possessing cannabis is significant in the community generally, including on the Island (s 5(2)(j) of the Sentencing Act). While cannabis is not a drug that is as insidious as methamphetamine or some others, the judgment of the legislature is that its possession is unlawful and so punishable. Every person must obey the law: Adams v The Queen (2008) 234 CLR 143 at [10] per Gleeson CJ, Hayne, Heydon, Crennan and Kiefel JJ.
In addition, your possession of the 54.7 grams of cannabis on 12 April 2019 and your subsequent conduct evidenced in each of the use offences showed, as your counsel submitted, that you were flouting the law in committing those three crimes. Although Dr Lemerle said that you were crying uncontrollably when she first saw you at the police station, saying repeatedly “I’m sorry”, almost immediately after you were released on bail you committed the first use offence. You then tried to paint an explanation to the police at the interviews on 15 and 16 May 2019 that the random urine screening result on 22 April 2019 was due to your drug taking on the Gold Coast. It was only after the second screening results showed you that this attempt to conceal your further breaches of the law had failed, that you turned to work hard, and well, on overcoming your addiction.
I have taken into account that, as an addict, the temptation to use the addictive substance is very powerful and is a reason for your behaviour. That may explain, but does not excuse, your conduct. The use offences were illegal acts, as you knew when committing them.
Under s 23 of the Sentencing Act, the Court can order you to perform community service for up to 200 hours as a sentencing order for the Island possession count. Even though you have asked that the use offences be taken into account, those offences cannot increase the overall maximum penalty for the Island possession count itself (s 143(3) of the Sentencing Act).
In my opinion, given the context in which the Island possession count arose, and taking the use offences into account with it, ordinarily it would be essential that I impose a term of imprisonment. That is the only appropriate and just sentence to reflect that your commission of those offences was a wilful defiance of the law. Not only must you be deterred from acting in this way again, but the community needs to know that such serious conduct is likely to result in imprisonment in order to deter others.
However, yours is not an ordinary case because of the fact that you have served 14 days in custody on remand and the conditions of your bail have had the effect for the last two years of a home detention order under s 43 of the Sentencing Act.
In all of the circumstances, because of those special factors, justice will be done if you are convicted, but be released on condition that you sign a bond under s 13 of the Sentencing Act, and be ordered to perform community service over the next two years for the number of hours I will specify later (ss 23(2)(c), 26(1)).
The licence, registration and silencer counts – Counts 4–6
The maximum penalty for each of the licence, registration and silencer counts is two years’ imprisonment and or a fine of $5,000. On their face, these three counts appeared to suggest a significant degree of criminality. The purpose of the registration and licencing provisions in the Firearms Act is to ensure that the police know and can have some regulatory control over who may possess firearms and weapons in the Island community and what those firearms and weapons are. However, I am satisfied that, when understood in context, the licence and registration counts reflect technical, rather than serious criminal, wrongdoing. The licence and registration counts comprise a single course of conduct. Had you registered the air pistol, you would also have obtained a permit for it. The air pistol was harmless, because there was no magazine, a defect that was obvious, because it was a revolver, and it may have been missing other small parts as well. In light of those considerations, your failure to have a licence for or register the air pistol can be seen as unfortunate and careless.
I accept that you have had a generally responsible attitude to firearms, as evidenced by your registration of and licences or permits for the six other ones that the police seized when executing the search warrant on 12 April 2019.
I will enter convictions on counts 4 and 5 and impose a relatively small fine on each.
The possession of an unregistered weapon, like the silencer the subject of count 6, is a serious offence. Even if the person with possession of the weapon has no nefarious intention, others may have such intentions, and can find or take these dangerous items. In R v Lott [2004] NSWSC 373 at [17], Howie J said that no-one in the community could have a lawful excuse for possessing a silencer and that such possession raises a serious question about the person’s intentions. Here, you gave no explanation about why you had the silencer in your possession. However, the Crown did not suggest that you had any nefarious intent in doing so.
A silencer has been a prohibited weapon only since item 32 was inserted in Sch 2 of the Firearms Act with effect from 1 August 2017. There was no evidence of how widely known this latest addition to the classes of prohibited weapon was or that you could be granted a permit under s 45D to possess or use it.
In all of the circumstances, I consider that your unexplained possession of the silencer, while serious, can be dealt with by imposing a further bond and additional hours of community service.
I must explain to you that the bonds that you will have to sign will provide that you will have to appear before the Court if, over the next two years, you test positive in random sample screening for any controlled drug, or do not perform the hours of community service within the two years and or are not of good behaviour. If you breach the bond and have to appear in Court, the Court can vary or cancel the orders and sentence with you afresh for the Island possession count, also taking into account the use offences (s 15(7) of the Sentencing Act).
The federal counts
The federal possession count – Count 1
The Criminal Code Regulations 2002 provided in Sch 3 that a trafficable quantity of cannabis in any form, including flowering or fruiting tops, leaves, seeds or stalks, was 250 grams or more. You had nearly five times that amount on 19 July 2018, albeit that only about half was usable. I accept that you and Ms May used the cannabis regularly and wanted to have a stockpile for future use and to make cannabis oil or resin to provide pain relief.
The Parliament has made possession of a trafficable quantity of cannabis an offence punishable with a maximum of two years’ imprisonment and or a fine of $84,000. The Parliament considered that a person in possession of the minimum or more of the trafficable quantity of a controlled drug like cannabis should be subject to the potential of a lengthy term of imprisonment and a significant fine. You must have known that possessing such a large quantity of cannabis was wrong, as I infer from your placing of it in various packages and then in containers in different parts of your residence.
You indicated that you would plead guilty to the federal possession charge at the earliest opportunity, once the Crown decided not to proceed with the withdrawn trafficking count. As I have said above, the plea has a utilitarian value in saving the cost of a trial and the disruption of lives of witnesses and is an indication that you have some remorse (s 16A(2)(g) of the Crimes Act). The Crown accepted that you cooperated fully in respect of this count, as it has now been charged (s 16A(2)(f), (g)) which satisfies me that you are genuinely remorseful for this offence.
Your conduct, in possessing such a quantity of cannabis, was serious. It was the first occasion on which you have been charged with a criminal offence. However, this is an offence that requires both a sentence that deters you, and also others in the community, from offending in this way in the future. There are readily available means of obtaining pain relief, such as obtaining a prescription from a medical practitioner or an over the counter pain killer. It is no excuse that you intended to use the cannabis to produce substances for pain relief for Ms May and yourself.
I have taken into account that, if you have to serve a custodial sentence, Ms May will lose not only your immediate day to day emotional support but also the care that you can provide her in dealing with her medical conditions. I have also had regard to your rehabilitative efforts to date, the fact that you are employed and contributing in that way to your workplace and the community, the likely adverse impact of a custodial sentence on what you have achieved so far, your own bipolar and anxiety conditions and the low risk of your reoffending.
In my opinion, a sentence of imprisonment is the only appropriate sentence available under the Crimes Act on the federal possession count. I have considered whether I should use the Island provisions and impose a community service order pursuant to s 308.1(3) of the Code: see Rajabizadeh v The Queen (2017) 268 A Crim R 46 at 58–59 [69]–[71], but do not consider that this would achieve a sentence of the appropriate severity that s 16A(1) requires. Nonetheless, I have had regard to the time you have spent in custody on remand, your bail conditions and the sentences that I have imposed for the Island offences.
For the reasons I explain in Regina v Evans (No 1) [2021] NFSC 2, I will order that you be released on giving security with one surety in the sum of $10,000 and that you comply with the terms of a recognisance release order that will operate similarly to your current bail conditions for the period I will specify. The reason I am going to impose such an order for this count and the trafficking count is because it is a way of punishing you while enabling you to rehabilitate and care for Ms May. This also takes account of the time you spent in custody and under the current bail conditions. Of course, if you breach this order, you can be sentenced to serve in prison the term of effective home detention that I will impose.
The trafficking count – Count 2
The plea of guilty that you entered for the trafficking count acknowledged that you possessed the pure weight of 19.4 grams of methamphetamine within the 26.5 grams of the mixture you secreted internally with the intention of selling at least some of it (ss 302.1(e) and 302.5(1) of the Code). The Crown accepts that you should be sentenced on the trafficking count on the basis that you intended primarily to use the methamphetamine yourself but also intended to sell some.
Your conduct was premeditated, carefully planned and obviously very wrong. You had discussed with Ms Muir and Mr Christian a less ambitious plan that, together, you would bring to the Island an eighth of an ounce of ice. But, on your own you acquired a mixture of over seven times that quantity and went to great lengths to secrete it internally. That indicates that you intended to sell a not insignificant part of what you brought to the Island, knowing it was in short supply and commanded a high price. As you told the police, people who brought methamphetamine in via the airport sold it and “made a heap of cash”. I accept you had an intention to use some part of the gross 26.5 grams yourself, and that you would also sell part of the mixture. However, you also intended to sell a considerable portion and wanted to make a “heap of cash” out of the gross 26.5 grams to ensure that you more than recouped your expenses.
What you did requires a sentence that achieves stern punishment. General deterrence of others must have great weight in imposing a sentence for such offending in almost every case: Wong v The Queen (2001) 207 CLR 584 at 607–608 [64] per Gaudron, Gummow and Hayne JJ. You sought to bring onto the Island a particularly nasty drug of addiction and to profit from doing so, as you had seen others do. Conduct of that kind is unacceptable. Such offences as you committed, involving the secreting of controlled drugs within a person’s body, are hard to detect. Great social consequences follow from their commission.
While I accept that you are unlikely to reoffend, a message must be given to the community on the Island that engaging in trafficking in ice means that the person will go to jail for a substantial period. The prevalence of methamphetamine in our society has destroyed the lives of many people, not just of the users or addicts but also of their families and friends. The drug is known to fuel violent and erratic behaviour. It is a scourge on our community. Premeditated conduct of the kind in which you engaged in the trafficking count cannot be tolerated. However, I will make the recognisance release order for the possession count also operate for the trafficking count.
Please stand.
Is there anything that you wish to say before I pass sentence on you?
OFFENDER: No, your Honour.
I enter a conviction on each count in the indictment and impose the following sentences:
(1)on count 1 – commencing on 4 June 2021, six months’ imprisonment,
(2)on count 2 – commencing on 4 September 2021, one years’ imprisonment,
(3)on count 3 – the offender perform 120 hours of community service on or before 3 June 2023,
(4)on count 4 – the offender pay a fine of $50,
(5)on count 5 – the offender pay a fine of $50,
(6)on count 6 – the offender perform a further 30 hours of community service on or before 3 December 2021,
I order that 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.
I order that the offender give security by the promise to pay $5,000 with one surety by recognisance on condition that:
(1)he appear before the Court if called on to do so during the period of two years,
(2)he be of good behaviour for the period of two years,
(3)up to 3 June 2026, he submit to urine testing as and when required by Norfolk Island Police,
up to 3 June 2026, he not use or consume any border controlled drugs.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 11 June 2021
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