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CDPP v Evans [2022] FCAFC 182

The offender was sentenced following pleas of guilty to 1 count of possessing a controlled drug in Norfolk Island contrary to s 308.1(1) of the Commonwealth Criminal Code and 1 count of trafficking in a controlled drug in Norfolk Island contrary to s 302.4(1) of the Commonwealth Criminal Code. Original sentence imposed immediate release upon entering recognizance of $10,000 including a home detention condition. The Crown appealed on the ground that the home detention order was beyond power.

Recognizance Release Order: In Norfolk Island, no formal arrangements have been entered into to permit home detention for federal offenders to take place as they are for offences under local laws, utilising the regime under s 20AB of the Crimes Act 1914. The primary judge decided that there was a power to achieve the same result by making such orders as a condition of recognizance under s 20(1)(a)(iv) and (b) of the Crimes Act 1914. If a sentencing option is provided by State or Territory legislation, the gateway to that option to apply to a federal offender is that for the jurisdiction to be prescribed as participating in the s 20AB scheme. This does not stand in the way of more general conditions of a recognisance, provided they do not seek to bypass that scheme and its limitations and conditions. The reasoning of the sentencing judge does not adequately take account of the role that the specific power in s 20AB has in confining the operation of the general power in s 20(1)(a)(iv), as picked up by s 20(1)(b). The purpose of s 20AB is to allow for a wider range of sentencing options when such States or Territories both have them available, and choose also to make them available for federal offenders, but also to limit them to that circumstance, especially when it comes to alternatives to imprisonment. That includes the practical aspects of applying such a State or Territory-based scheme, including staffing and enforcement, so long as there is no material inconstancy with the Crimes Act. It is not for a court to bypass the legislative choice as to the steps that must be taken before such a regime becomes available, for to do so is contrary to the principle laid down in Anthony Hordern. While the sentencing judge considered himself to be imposing an effective sentence of home detention, and erroneously reasoned that to do this was permissible, that is not in fact what the impugned conditions did. Read carefully, the sentencing judge imposed conditions on the recognisance release as was authorised by s 20(1)(a) and (b), not a further or different sentence, which was not authorised except by s 20AB when it applied.

Appeal dismissed.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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