R v Ham & Anor

Case [2016] QDC 255

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Ham & Anor [2016] QDC 255

PARTIES:

THE QUEEN

(Respondent)

v

MELISSA FELICITY HAM

and

DILLON CONNOR TOAL
(Applicants)

FILE NO/S:

D422/16

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

14/10/2016

DELIVERED AT:

District Court at Beenleigh

HEARING DATE:

27/09/2016

JUDGE:

Chowdhury DCJ

ORDER:

1. The minimum penalty prescribed by s 50B(1)(e) does not exclude the operation of ss. 91 and 101 Penalties and Sentences Act 1992

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – MANDATORY MINIMUM PENALTY – Whether the minimum penalty prescribed in s50(1)(e) Weapons Act 1990 excludes operation of ss91 and 101 Penalties and Sentence Act 1992 – whether there is any ambiguity of s50(1)(e)

Legislation:

Penalties and Sentence Act 1992 (Qld)

Weapons Act 1990 (Qld)

Cases Considered:

Beckwith v The Queen (1976) 135 CLR 569

Commissioner of Police Service v Magistrate Spencer & Ors [2013] QSC 202

Forbes v Jingle [2014] QDC 204

Sbresni v Commissioner of Police [2016] QDC 18

Skinner v The Commissioner of Police [2016] QDC 138

Uittenbosch v Department of Corrective Services [2005] QCA 300

COUNSEL:

Mr G. Churchill for the Crown

Mr J. Hunter Q.C for the Applicant HAM

Mr D. McKenzie for the Applicant TOAL

SOLICITORS:

Queensland Director of Public Prosecutions for Crown

Legal Aid Queensland for the Applicant HAM

Gilmore Lawyers for the Applicant TOAL

  1. The applicants have been charged on indictment with a series of offences, including count 3 on the indictment which reads as follows:

“That on or about the 24th day of June 2015 at Woodridge in the State of Queensland [the applicants] unlawfully supplied a weapon namely a 22 Glock handgun to another person.”

  1. This count alleges an offence against s. 50B Weapons Act 1990.  Relevantly, that section states as follows:

“(1)       A person must not unlawfully supply a weapon to another person;

…

(c)if paragraphs (a) and (b) do not apply, for a category D, H or R weapon – 500 penalty units or 10 years’ imprisonment.”

  1. Significantly, s. 50B(1)(e) of the Act states as follows:

“For an offence, committed by an adult, to which paragraphs (c)(i) applies, if the weapon is a short firearm and the person does not have a reasonable excuse for unlawfully supplying the weapon – two and a half years imprisonment served wholly in a corrective services facility.”

  1. It is clear that the legislature has provided that if an adult person unlawfully supplies a category H weapon without reasonable excuse, they must serve a minimum sentence of two and a half years’ imprisonment to be served “wholly in a corrective services facility”.  The purpose of the legislation is clearly set out in the Explanatory Notes to the Weapons and Other Legislation Amendment Bill 2012 which amended s. 50B of the Act specifically to introduce mandatory minimum penalties to apply for an offence of unlawfully supplying a firearm.

  1. The applicant, Toal, by way of formal application dated 12 September 2016 applied for a…

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AGLC
R v Ham & Anor [2016] QDC 255
Case
[2016] QDC 255
Decision Date

CaseChat Overview and Summary

In the case of R v Ham & Anor, the defendants were charged with the possession of a prohibited weapon. The dispute centred around the interpretation of the statutory framework governing the penalties for such offences, specifically whether the mandatory minimum penalty prescribed under the Weapons Act 1990 excludes the operation of certain provisions in the Penalties and Sentences Act 1992. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was to determine whether the minimum penalty prescribed in section 50(1)(e) of the Weapons Act 1990 precludes the application of sections 91 and 101 of the Penalties and Sentences Act 1992. The defendants argued that the prescribed penalty in section 50(1)(e) should be considered exclusive, thereby preventing the court from considering any additional penalties under the Penalties and Sentences Act 1992. The prosecution, however, contended that there is no ambiguity in the statutory language, and the provisions of both Acts should be applied concurrently.

The court examined the statutory language and legislative intent of both the Weapons Act 1990 and the Penalties and Sentences Act 1992. It found that there was no explicit exclusion in section 50(1)(e) of the Weapons Act 1992 that would preclude the application of sections 91 and 101 of the Penalties and Sentences Act 1992. The court concluded that the mandatory minimum penalty under section 50(1)(e) does not exclude the operation of the general penalty provisions in the Penalties and Sentences Act 1992. Consequently, the court ruled that the prescribed penalty does not operate to exclude the application of sections 91 and 101.

The court ordered that the minimum penalty prescribed by section 50B(1)(e) of the Weapons Act 1990 does not exclude the operation of sections 91 and 101 of the Penalties and Sentences Act 1992. This ruling ensures that the statutory framework governing penalties for the possession of prohibited weapons remains consistent and comprehensive.

Orders

Orders of the court

1. The minimum penalty prescribed by s 50B(1)(e) does not exclude the operation of ss. 91 and 101 Penalties and Sentences Act 1992

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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