R v Ham & Anor

[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 24^th 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 ruling “that the ‘circumstance of aggravation’ pursuant to s. 50B(1)(c)(i)(e) of the Weapons Act be ruled inapplicable to count 3 on the indictment”.  Since the filing of that application, the respondent prosecution have amended count 3 of the indictment to specifically add a circumstance of aggravation in the wording of a new indictment.  Once that occurred, the nature of the application changed.

1. The application by the applicant Toal became a request in essence for a declaration that the minimum penalty prescribed in s. 50B(1)(e) did not exclude the operation of ss. 91 and 101 Penalties and Sentences Act 1992.  This application was joined in by the applicant, Ham.

The relevant authorities

1. In Commissioner of Police Service v Magistrate Spencer & Ors [2013] QSC 202, Henry J considering an earlier incarnation of s 754 Police Powers and Responsibilities Act2000, held that the stipulated minimum penalty of 50 penalty units for failing to stop a motor vehicle when directed by a police officer did not exclude the availability of a probation order under s. 91 Penalties and Sentences Act 1992. Since that judgment, s. 754 of that Act was amended to provide, relevantly, a minimum penalty of “50 penalty units or 50 days’ imprisonment served wholly in a corrective services facility.” 

1. The addition of the words “imprisonment served wholly in a corrective services facility” was considered by his Honour Judge Harrison in Forbes v Jingle [2014] QDC 204. In that case it was argued that the additional words did not exclude the power of the courts to impose probation or community service orders as an alternative to a period of imprisonment. It was further argued that the legislature could easily have stated in the amendment that ss. 91 and 101 Penalties and Sentences Act 1992 were specifically excluded.

1. His Honour referred to the decision of the Court of Appeal in Uittenbosch v Department of Corrective Services [2005] QCA 300, at paragraphs [12] – [23] of the judgment of Atkinson J, who confirmed the following relevant principles of statutory interpretation:

1.          That an ambiguity in legislation affecting the liberty of the person will usually be construed in favour of the person affected;

2.          That the second interpretative principle is articulated in s 14A Acts Interpretation Act 1954, which provides that the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation;

3.          That the third relevant principle of statutory interpretation is in the case of ambiguity or obscurity, resort may be had to extrinsic material: s 14B Acts Interpretation Act 1954.

1. These principles are uncontroversial, and are longstanding.

1. Ultimately His Honour concluded that s. 754 Police Powers and Responsibilities Act 2000 still constituted an offence punishable by imprisonment, and therefore s. 91 in Penalties and Sentences Act 1992 was not excluded.

1. The reasoning of His Honour Judge Harrison has been applied in Sbresni v Commissioner of Police [2016] QDC 18 and Skinner v The Commissioner of Police [2016] QDC 138 in respect of other judgments concerning s. 754 of the Police Powers and Responsibilities Act. 

Proper interpretation of s 50B

1. The respondent submits that the decisions discussed above can be distinguished in the present case, as the wording of s. 50B is “differently and more precisely constructed” than s. 754 of the Police Powers and Responsibilities Act. At paragraph 6.4 of its outline, it is argued that the maximum penalty for an offence against s. 50B(1)(c) for a category D, H or R weapon is 500 penalty units or 10 years imprisonment. It is conceded that within that ambit, a court could exercise its sentencing discretion, and impose a probation order or community service order under the Penalties and Sentences Act. However it is argued that if the circumstances establish that the offender was an adult, and at least one of the weapons unlawfully supplied was a short firearm, and there is no reasonable excuse for unlawfully supplying the weapon, the precise minimum term of two and a half years imprisonment to be served wholly in a corrective services facility applies.

1. In Beckwith v The Queen (1976) 135 CLR 569, Gibbs J (as he then was) at [576] said this:

“The rule formerly accepted, that statutes creating offences are to be strictly construed has lost much of its importance in modern times.  In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful, the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences… This rule is perhaps one of last resort.”

1. In my view there is no ambiguity in the terms of the section. There is no need for any resort to extrinsic material in the circumstances. The argument for the respondent is that while the maximum penalty provided by s. 50B(1)(c) does not exclude the operation of ss. 91 and 101 Penalties and Sentences Act 1992, the provision of a specific minimum sentence under subsection (e) necessarily does exclude their operation.  There is a superficial attraction to the argument, but as has been made clear by the applicants, it would have been easier for the legislature to specifically state that those sections did not apply.  The decisions in Forbes v Jingle, supra, and Sbresni v Commissioner of Police [2016] QDC 18, supra, have direct application to the interpretation here.

1. I therefore rule that the minimum penalty prescribed by s. 50B(1)(e) does not exclude the operation of ss. 91 and 101 Penalties and Sentences Act 1992. By extension the same ruling applied to the minimum penalties provided by s. 50(1)(d) Weapons Act 1990.