On 30 April 2012, the then Premier of Queensland, Campbell Newman revealed a crack down on weapons offences. His government introduced mandatory minimum penalties for weapons charges. Importantly section 50 of the Weapons Act 1990 was amended to include mandatory minimum sentences for possession of various classes of weapons in a public place. Consequently this regime has seen sentences which have appeared unjust. Queensland Courts have sought to remedy the unfairness by imposing probation orders, particularly for young, first time offenders.
There have been conflicting interpretations in both the Magistrates and District Court on this issue. That is to say, does the Court have a power in an appropriate case, to impose a period of probation instead of the actual imprisonment. The Court of Appeal has now determined the issue of Mandatory Minimum Imprisonment for possession of weapon charges in the decision of Commissioner of Police v Broederlow [2020] QCA 161
The legislation provides at Section 50(1)(d) under the heading minimum penalty:
- if the person unlawfully possesses a firearm and uses the firearm to commit an indictable offence—18 months imprisonment served wholly in a corrective services facility; or
- if the person unlawfully possesses a firearm for the purpose of committing or facilitating the commission of an indictable offence—1 year’s imprisonment served wholly in a corrective services facility; or
- if the person unlawfully possesses a short firearm in a public place without a reasonable excuse—1 year’s imprisonment served wholly in a corrective services facility; or
The mandatory minimum penalty provisions in s 50 were introduced at the same time as those for unlawful supply in s 50B and for unlawful trafficking in s 65. That occurred in 2012, with the passing of the Weapons and Other Legislation Amendment Act. After that legislation was passed there has been ongoing tension between the language of the section and general sentencing discretion.
Facts
On 22 December 2018, Ethan Broederlow was intercepted by police while driving a vehicle. As a result he revealed that he had a gun in the vehicle and police discovered upon searching that the gun was a silver homemade single shot pistol. The pistol had a bolt action and was designed to fire a .22 calibre bullet. Broederlow did not have a weapons licence authorising him to possess such a firearm. As a result he was charged with unlawful possession of a weapon in public, contrary to s 50 of the Weapons Act 1990 (Qld).
Magistrates Court Sentence
On 10 April 2019, Mr Broederlow pleaded guilty to possessing the weapon and 12 other charges, in the Beenleigh Magistrates Court . The sentencing magistrate concluded that he was required to impose a mandatory minimum sentence of one year’s imprisonment served wholly in a corrective services facility. This was because of the application of s 50(1)(d)(iii) of the Weapons Act.
District Court Appeal
Broederlow appealed against his sentence to the District Court, contending that the Magistrate erred in finding that probation was not an available sentencing option. In essence the Magistrate was wrong to consider himself constrained as to his sentencing discretion.
Judge Chowdrey heard the appel. His Honour, allowed the appeal and resentenced Broederlow to a period of two years’ probation with a conviction recorded. See decision of Chowdhury DCJ in Broederlow v Commissioner of Police (No 2) [2019] QDC 241
Ground of Appeal
The Commissioner of Police appealed the decision to the Court of Appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld). It was contended that the wording of s 50 is unambiguous. In short, Judge Chowdhury DCJ was said to have erred in concluding that section 50 did not exclude the discretion to impose a probation order.
It was suggested that the reasoning of Bowskill J, in the decision of The Queen v DS [2019] QSC 288 applied to the instant offence. The appeal in DS related to s 50B(1)(e) of the Weapons Act (Unlawfully supplying a category H weapon to a person, being a short firearm, and having no reasonable excuse for doing so). The Court in Broederlow held that the reasoning applied equally to the possession of a weapon offence as much as the supply of weapons.
Decision
Morrission JA with whom Sofronoff P and Mullins JA agreed, found that section 50 is clear and unambiguous. In short there is no power to impose a penalty other than the minimum term to be wholly served in a corrective services facility. His Honour had regard to the following factors:
- the text of the provision makes it clear that the offences to which the mandatory minimum penalty apply are a specific classification within the general offences of unlawful possession. s 50(1)(d) picks out specific subdivisions of offences, identified specifically by their characteristics.
- the way in which the provision specifies the penalty is, in my view, entirely unambiguous. It requires the period of imprisonment to be served “wholly in a corrective services facility”. Those very clear words exclude serving a penalty outside a corrective services facility. A probation order is just such a penalty.
- ss 50(1)(a)-(c) all provide for a maximum penalty depending on the circumstances. Properly construed in accordance with s 41 of the Acts Interpretation Act, that is taken to mean that the offence is punishable by a penalty not more than the maximum.
- the context in which ss 50(1)(d) and (e) are found can be determined by reference, in part, to the extrinsic material.
… s 50(1)(d)(iii) provides no opportunity to exercise a discretion, but mandates the imposition of the minimum penalty. Thus, if this Court reached the conclusion, as I have, that s 50(1)(d)(iii) was unambiguous in its terms and compelled the imposition of that minimum penalty, the terms of the statute exclude any residual discretion.
Commissioner of Police v Broederlow [2020] QCA 161 at 40
When considering the Courts residual discretion the Court was persuaded that Broederlow had performed well on Probation. However, the Court determined that there was no power to impose a sentence other than imprisonment.
That conclusion highlights the unsatisfactory nature, from a sentencing discretion point of view, of statutes which impose mandatory minimum sentences. Effectively it means that an offender is subject to that mandatory minimum no matter what the circumstances of the offending and no matter how compelling the mitigating factors might be. This case is an example of that. The evidence adduced shows the respondent’s positive performance whilst on probation since his release from custody. Whatever the merits of that mitigating factor, s 50(1)(d)(iii) prevents the Court from giving appropriate recognition to it.
Commissioner of Police v Broederlow [2020] QCA 161 at 42
What does this mean for the Evade Police Charge?
The Court referred to the decision of Henry J in Commissioner of Police Service v Spencer. Without deciding the issue the Court held that the wording of s 754 is well removed from that in ss 50(1)(d) and (e).
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