R v Nauer - [2020] QDC 119

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Nauer [2020] QDC 119

PARTIES:

R

(Prosecution)

v

Daniel Danees Nauer

(Defendant)

FILE NO/S:

700/19 (Beenleigh District Court)

DIVISION:

Criminal

DELIVERED ON:

18 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2020 at Beenleigh District Court.

JUDGE:

Byrne QC DCJ

ORDER:

1. The mandatory minimum penalty prescribed in section 50B(1)(e) is not applicable to this prosecution.

CATCHWORDS:

CRIMINAL LAW – MANDATORY MINIMUM PENALTY – where the defendant was charged with unlawfully supplying a category H weapon – whether the mandatory sentencing provision in s 50(1)(e) applies to the conduct of the defendant.

Acts Interpretation Act 1954, s 41
Criminal Code 1899, ss 564, 572
Evidence Act 1977, s 132C
Penalties and Sentences Act 1992
Weapons Act 1990, ss 50B, 65, schedule 2

Broederlow v Commissioner of Police [2019] QDC 228
R v DS [2019] QSC 288
R v WAY; ex parte Attorney-General (Qld) [2013] QCA 398
Rule v Commissioner of Police [2016] QDC 64
The Queen v de Simoni (1981) 147 CLR 383

COUNSEL:
Mr S. Muir for the Prosecution
Mr P. Wilson for the Defendant

SOLICITORS:
Office of Director of Public Prosecutions for the Prosecution
Affleck Lawton for the Defendant

Background

The Defendant has pleaded guilty to an offence in the following terms:
“That on a date unknown between the first day of November 2018 and the thirty-first day of December 2018 at Park Ridge in the State of Queensland, DANIEL DANEES NAUER unlawfully supplied a category H weapon to another person.”
The margin of the single count indictment contains:
“Section 50B(1)(c)(i)(e) Weapons Act 1990”.
A preliminary issue arose in the course of sentencing submissions concerned with whether a particular mandatory sentencing provision applied to the conduct of the defendant, and hence what sentencing options were available on sentence.

Legislative Provisions

Section 50B of the Weapons Act 1990 (WA) relevantly provides:
“50B Unlawful supply of weapons
(1) A person must not unlawfully supply a weapon to another person.
Maximum penalty—
(a) if the person unlawfully supplies 5 or more weapons at least 1 of which is a category D, E, H or R weapon—13 years imprisonment; or
(b) if paragraph (a) does not apply and the person unlawfully supplies 5 or more weapons—500 penalty units or 10 years imprisonment; or
(c) if paragraphs (a) and (b) do not apply—
(i) for a category D, H or R weapon—500 penalty units or 10 years imprisonment; or
(ii) for a category C or E weapon—300 penalty units or 7 years imprisonment; or
(iii) for a category A, B, or M weapon—200 penalty units or 4 years imprisonment.
Minimum penalty—
(d) … or

(e) for an offence, committed by an adult, to which paragraph (c)(i) applies, if the weapon is a short firearm and the person does not have a reasonable excuse for unlawfully supplying the weapon—2 ½ years imprisonment served wholly in a corrective services facility.

(1A) For the purpose of subsection (1), penalty, paragraph (d) or (e), but without limiting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Nauer

Details

AGLC: R v Nauer [2020] QDC 119
Case: [2020] QDC 119
Decision Date: 18 June 2020

CaseChat Overview and Summary

In the matter of R v Nauer, the defendant was charged with unlawfully supplying a category H weapon. The case came before the court to determine the applicability of the mandatory minimum penalty under section 50(1)(e) to the defendant's conduct. The dispute centered on whether the statutory provision for a mandatory minimum penalty applies in cases of unlawful supply of a category H weapon.

The court was tasked with interpreting the statutory language and determining its scope. Specifically, the court needed to decide if the mandatory minimum penalty was applicable to the defendant's conduct, given the specific wording of section 50(1)(e). The interpretation hinged on whether the term "unlawfully supplying" a category H weapon fell within the purview of the mandatory sentencing provision.

The court examined the statutory language and concluded that the mandatory minimum penalty prescribed in section 50B(1)(e) does not apply to the prosecution. The court found that the phrase "unlawfully supplying" a category H weapon did not fit within the strict parameters set out in the provision. Consequently, the mandatory minimum penalty was not applicable in this instance.

Orders

Orders of the court

1. The mandatory minimum penalty prescribed in section 50B(1)(e) is not applicable to this prosecution.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Nauer [2020] QDC 119
PARTIES:	R (Prosecution) v Daniel Danees Nauer (Defendant)
FILE NO/S:	700/19 (Beenleigh District Court)
DIVISION:	Criminal
DELIVERED ON:	18 June 2020
DELIVERED AT:	Brisbane
HEARING DATE:	29 May 2020 at Beenleigh District Court.
JUDGE:	Byrne QC DCJ
ORDER:	1. The mandatory minimum penalty prescribed in section 50B(1)(e) is not applicable to this prosecution.
CATCHWORDS:	CRIMINAL LAW – MANDATORY MINIMUM PENALTY – where the defendant was charged with unlawfully supplying a category H weapon – whether the mandatory sentencing provision in s 50(1)(e) applies to the conduct of the defendant. Acts Interpretation Act 1954, s 41 Criminal Code 1899, ss 564, 572 Evidence Act 1977, s 132C Penalties and Sentences Act 1992 Weapons Act 1990, ss 50B, 65, schedule 2 Broederlow v Commissioner of Police [2019] QDC 228 R v DS [2019] QSC 288 R v WAY; ex parte Attorney-General (Qld) [2013] QCA 398 Rule v Commissioner of Police [2016] QDC 64 The Queen v de Simoni (1981) 147 CLR 383
COUNSEL:	Mr S. Muir for the Prosecution Mr P. Wilson for the Defendant
SOLICITORS:	Office of Director of Public Prosecutions for the Prosecution Affleck Lawton for the Defendant