Regina v Evans (No 1) [2021] NFSC 2

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