Consideration
9 I reject the Crown's submission.
10 The purpose of a recognisance release order evinced in s 19AC of the Crimes Act is that it operates as part of an overall sentence of imprisonment, in lieu of a period of parole, at the conclusion of the time of no more than three years that an offender must spend in a prison. The power to make such an order, necessarily, contemplates that it may operate as a restriction on the liberty of the individual to whom it applies. That power is contained in s 20(1) which is headed "Conditional release of offenders after conviction". The power is intended to be used to regulate the behaviour of the offender while he or she is released from serving the balance of a sentence of imprisonment and up to five years after his or her release (s 20(1)(a)(i)) by requiring him or her to comply with "such other conditions (if any) as the court thinks fit to specify in the order" (s 20(1)(a)(iv)). It is a power that must be exercised as part of the Court's duty under s 16A(1) to "impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence". It follows that it is inherent in the statutory scheme that the conditions that a court has power to include in a recognisance release order must have regard to punishment of the severity appropriate to the crime of which the offender stands convicted.
11 In Isaacs v McKinnon (1949) 80 CLR 502, Latham CJ, Rich, McTiernan and Webb JJ held that a condition could be imposed under s 20(1)(a)(iv) that required a bankrupt, who had been convicted of disposing of his property other than in the ordinary way of his trade, to pay to the Official Receiver £160 a year, by quarterly instalments, for five years. The Court held that the conditions of the recognisance had to be relevant to the behaviour of the person sentenced in matters affecting the Act under which the conviction occurred. McTiernan J, with whom Rich J agreed on this issue, said (80 CLR at 520, and see too per Latham CJ at 510-511, Webb J at 531-532):
… The Court of Bankruptcy is a court to which s. 20 (1) of the Crimes Act gives the powers contained in that provision. It adds those powers to the powers conferred by the Bankruptcy Act upon the court. Section 20 (1) gives to the Court of Bankruptcy the same general discretion in respect of the conditional release of offenders as the provision gives to any other court. The question whether any condition upon which a court orders the release of an offender is within the general discretion given by s. 20 (1) would depend upon its connection with some relevant principle such as retribution, correction or punishment and perhaps various moral and social considerations. From this point of view the discretion which the Court of Bankruptcy has under s. 20 (1) is not more limited than that of any other court to which it applies. But the discretion is one which every court is bound to exercise subject to law. Neither the Court of Bankruptcy nor any other court may impose a condition which contravenes the Bankruptcy Act or any other statute or is contrary to public policy.
(emphasis added)
12 Dixon J, who dissented on the issue of whether the condition was contrary to the policy of bankruptcy law, said (80 CLR at 523):
The words "such conditions as the court thinks fit to impose" are very wide but they do not authorize the imposition of conditions which are repugnant to the principles or policy of the law or are foreign to the purpose of the power. The provision is concerned with the consequences of crimes against Federal law. Federal laws against which offences may be committed deal with a variety of subjects and the specific applications of the power to impose conditions must vary accordingly.
13 In The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ said (applied in PM v The Queen (2007) 232 CLR 370 at 377 [20] per Gleeson CJ, Hayne, Heydon and Crennan JJ):
It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.
(citation omitted)
14 Moreover, the text of s 20(1)(a)(iv), as taken up when s 20(1)(b) applies by force of s 19AC(1), lends no support to acting on an unexpressed limitation on the power it confers on the Court to impose conditions in a recognisance release order that apply to regulate the behaviour of the convicted person when the Court has ordered him or her to be released from serving a sentence of imprisonment subject to conditions: Alcan (NT) Alumina Pty Ltd v Commission of Territory Revenue (2009) 239 CLR 27 at 46-47 [47] per Hayne, Heydon, Crennan and Kiefel JJ.
15 The width of the power appearing in the ordinary and natural meaning of s 20(1)(a)(iv) is reinforced by the note underneath it that gives examples of conditions that may be ordered that require the person to undertake specific activities during a particular period. Compliance with such an order necessarily involves a restriction on the freedom that the convicted person would otherwise have had. In Adams v Carr (1987) 47 SASR 205 at 214-216, von Doussa J, with whom King CJ and Bollen J agreed, held that a condition could be imposed under s 20(1)(a)(iv) that the person undertake a specified number of hours of community service and obey the lawful directions of a community service officer to whom the person is assigned, even though a court sentencing for a federal offence could not make the order directly under a State or Territory law referred to in s 20AB(1) of the Crimes Act. That was because the non-federal law did not authorise, for example, a community service order, to be made as part of an order imposing a good behaviour bond.
16 Since s 19AC(1) of the Crimes Act requires a court imposing a sentence of three years or less for a federal offence to make a recognisance release order as the gateway to regulate the convicted person's conduct during the non-custodial phase of his or her sentence, courts have held that for any order to be validly made under a State or Territory law picked up in s 20AB(1), it must be able to be made in the same circumstances as an order under s 20(1) of the Crimes Act. However, as von Doussa J explained in Adams 47 SASR at 214-216, a condition imposed under s 20(1)(a)(iv) can achieve a similar outcome as an order that cannot be made directly by picking up a non-federal law as s 20AB(1) allows.
17 In my opinion, the reasoning in Shambayati 105 A Crim R at 376 [17] is plainly wrong so far as it may apply to the current form of the Crimes Act. First, s 20AB(1AA)(a)(vii), (viia) and (viii) specifically apply to drug or alcohol treatment, rehabilitation, residential treatment and good behaviour orders. Such orders are consistent with both s 20(1)(a)(i), that enables the Court to require the person to be of good behaviour for such period not exceeding five years as specified in the recognisance release order, and with the examples given in the note to s 20(1)(a)(iv). Secondly, the reasoning is in the teeth of the express words of s 20(1)(a)(iv), was contrary to the construction of the provision in Isaacs 80 CLR at 510-511, 523-524 and ignored the principles of statutory construction in Shin Kobe Maru 181 CLR at 421, 520, 531-532; Alcan 239 CLR at 46-47 [47]. Thirdly, the reasoning failed to recognise that s 20AB(1) was an additional source of power for a court to impose a sentencing order under the Crimes Act that should be construed in accordance with the principles of statutory construction to which I have referred. Their Honours' use of the existence of the power to make additional orders conferred in s 20AB(1) as a limitation on the wide power in s 20(1)(a)(iv) inverted the need to have regard to each section as a source of power, reading its text in its ordinary and natural meaning.
18 Fourthly, as Isaacs 80 CLR 502 recognised, the discretion in s 20(1)(a)(iv) could not be exercised to impose a condition that was contrary to public policy or the Act creating the offence. Indeed, a discretion of that kind is, ordinarily, construed as "unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J, applied by Stephen, Mason, Murphy, Aickin and Wilson JJ in The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; see too R v Theodossio (1998) 104 A Crim R 367 at 370 per de Jersey CJ, McPherson JA and Chesterman J.
19 Here, the Parliament evinced a policy that the sentencing provisions of the Crimes Act could achieve sentencing outcomes consistent with, indeed (subject to there being no conflict with the Act itself), in the exact terms of, participating State and Territory laws referred to in s 20AB(1). It would be an odd result that if such an outcome, like a home detention order, was able to be imposed in one participating State or Territory but not in another, the law of which made its imposition inconsistent with Pt IB of the Crimes Act, a sentencing court in the latter jurisdiction could not seek to achieve the same outcome by structuring appropriately adapted conditions in a recognisance release order, as von Doussa J explained in Adams 47 SASR at 214-216. The Parliament can be taken to have intended that the exercise of sentencing powers conferred in the Crimes Act on courts across the Commonwealth should provide, so far as possible, consistent outcomes for similar offending. That principle underlines all federal sentencing: The Queen v Pham (2015) 256 CLR 550 at 556-557 [18]-[22] per French CJ, Keane and Nettle JJ, with whom Bell and Gageler JJ agreed on this issue at 563 [41]; see too Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[70] per McHugh, Gummow, Kirby and Hayne JJ.
20 In addition, in Atanackovic 45 VR at 206-207 [89]-[93], Weinberg, Kyrou and Kaye JJA said, in obiter dicta, that it was arguable that a federal sentence could be structured under s 20(1) to combine more than one sentencing disposition (see 207 [92]). In Tran [2019] SASCFC 5 at [56], Kourakis CJ, Blue and Lovell JJ said:
… It can be accepted that it is only on a recognizance release order pursuant to which a Commonwealth offender can be released from prison before the expiration of a term of imprisonment of less than three years. However, the imposition of further penalties or obligations on the defendant's release from prison, whether on a recognizance release order or on the expiry of the sentence, would not impinge on the conditions of release. The penalty order operates in the event of release but does not detract from the legal operation of s 20 of the Crimes Act. Nor does it trespass onto any field covered by s 20 because the terms and conditions of the recognizance are no more than that they determine what will breach the recognizance and subject the defendant to the sanctions provided for by s 20A of the Crimes Act.
(emphasis added)