Regina v Evans (No 2) - [2021] NFSC 3

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 3

Bail 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…

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 2)

Details

AGLC: Regina v Evans (No 2) [2021] NFSC 3
Case: [2021] NFSC 3
Decision Date: 4 June 2021

CaseChat Overview and Summary

In Regina v Evans (No 2), the court considered the sentencing of a defendant who had pleaded guilty to a number of drug-related offences. The defendant had no prior criminal record, but had committed further offences of possession and trafficking of controlled drugs after his bail had been dispensed with. The court was tasked with determining the appropriate sentence, taking into account the defendant's lack of a criminal history, his contrition for his offending conduct, and the fact that he had spent time in custody on remand and was subject to bail conditions amounting to home detention for two years. The defendant's de facto partner was also reliant on him for emotional and medical support.

The legal issues before the court included whether full-time imprisonment or an immediate recognisance release order was appropriate, and whether conditions amounting to home detention should be included in the recognisance release order. The court also had to consider the sentencing for the possession of a prescribed plant, two further offences of using and consuming a controlled drug, and possession of a firearm without registration or a licence, as well as possession of a silencer without authorisation.

The court determined that an immediate recognisance release order was appropriate, with conditions amounting to home detention for a period of two years. The defendant was also ordered to perform community service and pay fines. The court took into account the defendant's lack of a criminal history, his contrition for his offending conduct, and the fact that he had been rehabilitated during his time on remand. The court also considered the impact of the sentence on the defendant's de facto partner, who was reliant on him for emotional and medical support.

The court ordered that convictions be entered on each count in the indictment and that the offender be sentenced to imprisonment, community service, and fines. The offender was to be released from imprisonment immediately and give security by recognisance and comply with conditions that included good behaviour, urine testing, and restrictions on his movement and visitors. The offender was also to give security by the promise to pay for the sentence imposed for counts 3 and 6 on condition that he appear before the Court if called on to do so during the period of two years, be of good behaviour for the period of two years, submit to urine testing as and when required by Norfolk Island Police, and not use or consume any border controlled drugs.

Orders

Orders of the court

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,

(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,

(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,

(d) up to 3 June 2026, he not use or consume any border controlled drugs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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 3 Bail 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…