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Broederlow v Commissioner of Police

 

[2019] QDC 228

DISTRICT COURT OF QUEENSLAND

CITATION:

Broederlow v Commissioner of Police [2019] QDC 228

PARTIES:

ETHAN SHANE BROEDERLOW

(Appellant)

v

COMMISSIONER OF POLICE

(Respondent)

FILE NO/S:

1261/19

DIVISION:

Civil

PROCEEDING:

222 Appeal

ORIGINATING COURT:

Magistrates Court at Beenleigh

DELIVERED ON:

15 November 2019

DELIVERED AT:

District Court at Beenleigh

HEARING DATE:

10 October 2019

JUDGE:

Chowdhury DCJ

ORDER:

  1. Appeal allowed
  2. Magistrate erred in holding that probation not a sentencing option
  3. Insufficient basis for case to be stated to Court of Appeal

CATCHWORDS:

APPEAL FROM MAGISTRATE – MANDATORY MINIMUM SENTENCING – s 222 Justices Act 1886 (Qld) – ss 50(1)(c)(i) and 50(1)(d)(iii) Weapons Act 1990 (Qld) – Meaning of “wholly in a corrective services facility” – Whether Magistrate erred in finding that probation is not an available sentencing option – Whether case should be stated to Court of Appeal

Acts Interpretation Act 1954 (Qld) s 41, s 41A, s 41B

Corrective Services Act 2006 (Qld) s 6, s 7, s 149, s 151

Criminal Code 1899 (Qld) s 23, s 24, s 305

Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld)

District Court of Queensland Act 1967 (Qld) s 118

Justices Act 1886 (Qld) s 222, s 223, s, 224, s 225, s 227,

Penalties and Sentences Act (Qld) s 4, s 91, s 101

Police Powers and Responsibilities Act 2000 (Qld) s 754

Serious and Organized Crime Legislation Amendment Act 2016 (Qld) s 307

Weapons Act 1990 (Qld) s 15B, s 50(1)(c)(i), s 50(1)(d)(iii), s 50(1)(e), s 50B(1)(e), s 50B(1)(c)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27

Broome v Cassell & Co [1972] AC 1027

Campbell v Galea [2019] QDC 53

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

Cronin v Commissioner of Police Service [2016] QDC 63

Doig v Commissioner of Police [2016] QDC 320

Forbes v Jingle [2014] QDC 204

Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88

Lassanah v State of New South Wales [2009] NSWDC 73

Magaming v The Queen (2013) 252 CLR 381

McDonald v Queensland Police Service [2018] 2 Qd R 612

New York, New Haven and Hartford Railroad Company v Henagan (1959) 272 F.2d 153

Nguyen v Nguyen (1989 – 1990) 169 CLR 245

Palling v Corfield (1970) 123 CLR 52

Powley v Queensland Police Service [2017] QDC 152

Prevato v Miszalski & Anor (1986) 19 A Crim R 330

Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166

Queensland v The Commonwealth (1977) 139 CLR 585

R v BDX (2009) 24 VR 288

R v Ham & Anor [2016] QDC 255

R v Peter Anthony Lewis (unreported) Supreme Court Brisbane, Indictment Number 377 of 2016, 9 March 2016

Sbresni v Commissioner of Police [2016] QDC 18

Skinner v Commissioner of Police Service [2016] QDC 138

Sweeney v Volunteer Marine Rescue Currumbin Inc v Suncorp General Insurance Limited [2000] QCA 455

Uittenbosch v Department of Corrective Services [2005] QCA 300

Western Australia v The Commonwealth (1975) 134 CLR 201

Young v Bristol Aeroplane Co Limited [1944] KB 718

Sir Anthony Mason, KBE, “The Use and Abuse of Precedent” (1988) 4 Australian Bar Review 93

Pearce and Geddes, “Statutory Interpretation in Australia” (Lexis Nexis Butterworths, 8th ed, 2014) 146

The Honourable Michael Kirby AC CMG, “Statutory Interpretation: The Meaning of Meaning” (2011) 35 Melbourne University Law Review 113

COUNSEL:

K. Juhazs for the applicant

M. Le Grand for the respondent

SOLICITORS:

Guest Lawyers for the applicant

Office of the Director of Public Prosecutions for the Queensland Police Service for the respondent

  1. [1]
    By way of a notice of appeal filed in the Brisbane Registry of the District Court of Queensland on 12 April 2019, transferred to the Beenleigh Registry, the appellant appeals to this Court on the single ground as follows:

“1.The learned Magistrate erred in finding that probation is not an available sentencing option with respect to the offence ‘Unlawful possession of weapons Category D/H/R weapon’ dated 22 December 2018 under sections50(1)(c)(i) and 50(1)(d)(iii) of the Weapons Act 1990.”

  1. [2]
    This appeal raises yet again the vexed question of the proper interpretation of mandatory minimum terms of imprisonment in Queensland legislation. One anticipates that this will not be the last appeal on this question, unless urgent legislative action is taken.

Factual background

  1. [3]
    On 9 April 2019 the appellant pleaded guilty to the following offences:
  1. Offences committed on 22 December 2018 –
  1. (a)
    Unlawful possession of weapons category D/H/R;
  1. (b)
    Unlawful possession of dangerous drugs;
  1. (c)
    Possession of utensils or pipes that had been used to commit a drug offence;
  1. (d)
    Unauthorised possession of explosives;
  1. (e)
    Unlicensed driving.
  1. Offences committed on 10 May 2018 –
  1. (a)
    Enter premises and commit an indictable offence.
  1. Offences committed on 1 June 2018 –
  1. (a)
    Unlawful possession of dangerous drugs.
  1. Offences committed on 17 June 2018 –
  1. (a)
    Disqualified driving;
  1. (b)
    Drive an uninsured vehicle;
  1. (c)
    Drive an unregistered vehicle.
  1. Offences committed on 11 January 2018 –
  1. (a)
    Unlicensed driving as a repeat offender (never held a licence);
  1. (b)
    Drive uninsured vehicle;
  1. (c)
    Drive unregistered vehicle.
  1. [4]
    The following sentences were imposed by the learned Magistrate on 12 April 2019:
  1. Unlawful possession of weapons category D/H/R – 12 months imprisonment, with parole release date on 21 December 2019.
  1. Two offences of unlawful possession of a dangerous drug – 14 days imprisonment.
  1. Possession of drug utensils or pipe – convicted but not further punished.
  1. Unauthorised possession of explosives – convicted but not further punished.
  1. Three offences of driving a motor vehicle without a drivers licence, having been disqualified by court order – 112 days imprisonment, followed by 2 years probation. Disqualified from holding or obtaining a driver licence for 5 years.
  1. Enter premises and commit an indictable offence – 9 months imprisonment.
  1. Two offences of driving an uninsured vehicle – convicted and not further punished.
  1. Two offences of driving an unregistered vehicle – convicted and not further punished.
  1. Previous sentences that had been wholly suspended were activated, and to be served concurrently with each other and all other sentences.
  1. 112 days of pre-sentence custody declared as time already served under the sentence.
  1. [5]
    There is an anomaly in the description of the offences between the notice of appeal and the reasons of the learned Magistrate. Due to the sole ground of appeal, that anomaly does not affect the disposition of the appeal.
  1. [6]
    The facts of the Weapons Act 1990 offence can be shortly stated. The appellant was intercepted by police in his vehicle on 22 December 2018. Before searching the vehicle police asked the appellant whether he had anything to declare. The appellant admitted he was in possession of a bolt action pistol and directed them to its location within a bag on the passenger seat. The weapon was a category H weapon under the Weapons Act 1990 for which the appellant did not hold a weapons licence.[1]

Reasons of the learned Magistrate

  1. [7]
    The learned Magistrate reserved his decision on the penalty to be imposed for the unlawful possession of a category H weapon. The learned Magistrate declined to follow my decision in R v Ham & Anor [2016] QDC 255, and reliance was placed on the decision of his Honour Judge Deveraux SC in Doig v Commissioner of Police [2016] QDC 320 and a ruling by the Honourable Justice Brown in passing sentence in R v Peter Anthony Lewis, (unreported) Supreme Court Brisbane, Indictment Number 377 of 2016, on 9 March 2016.
  1. [8]
    At [3] of his Honour’s reasons, the relevant provision of the Weapons Act 1990 was reproduced, as it relevantly applied. In brief, s50(1)(d)(iii) Weapons Act 1990 provided that for a category H weapon, the maximum penalty was 300 penalty units or 7 years imprisonment. If the offence was committed by an adult, and the adult unlawfully possessed a short firearm in a public place without a reasonable excuse, a minimum penalty of 1 years imprisonment served wholly in a corrective services facility was mandated.
  1. [9]
    Between [4]-[5] the learned Magistrate succinctly set out the competing arguments. In essence, the appellant argued that probation was not excluded by the minimum penalty, and therefore there was a discretion imposed in the sentencing court to order probation as the offence was clearly an offence punishable by imprisonment, in accordance with s91 Penalties and Sentences Act 1992. The prosecution submitted that the plain English of the section and legislative intention behind the section provided for a mandatory minimum penalty. His Honour rejected the prosecution argument that the qualification of “without a reasonable excuse” within the section provided a protection against potential unfairness associated with mandatory sentences. His Honour considered that the qualification limited the excuses to inadvertent failures to renew existing licences and the like.
  1. [10]
    The learned Magistrate traced the history of the controversy starting with the decision of the Honourable Justice Henry in Commissioner of Police Service v Magistrate Spencer & Ors [2013] QSC 202. That decision concerned the penalty provisions of s 754 Police Powers and Responsibilities Act 2000 (“PPRA”), which creates an offence for a driver of a motor vehicle to fail to stop the motor vehicle when a police officer using a police service motor vehicle gives the driver a direction to stop. In its original incarnation that section provided for a maximum penalty of 200 penalty units or three years’ imprisonment, and a minimum penalty of 50 penalty units. His Honour said the following:

[17]What though of s 754’s reference to a ‘minimum penalty’ of 50 penalty units? Where, as here, a minimum as well as a maximum penalty is specified then the penalty must not be less than the minimum and not more than the maximum. However, there appears to be no reason grounded in statute or principle why a period of probation ought to be regarded as a lesser penalty than a fine. They are inherently different forms of penalty and their relative harshness will vary subjectively, depending on their duration or amount and on the individual circumstances of the offender. Further, the fact that probation arises as a sentencing alternative to imprisonment, whereas a fine is a sentencing option even for offences that are not punishable with imprisonment, suggests as a matter of principle that probation should not be regarded as a lesser sentencing option than a fine.

[18]Section 754’s reference to a minimum penalty of 50 penalty units requires that where a fine is imposed it must be at least 50 penalty units. However, it does not require that a fine must be imposed. To construe the penalty provision for the offence in that way would be to ignore that it is also an offence punishable with imprisonment and, it follows, with probation. The wording of s 754 does not inevitably require the imposition of a fine or exclude the availability of a sentence of probation.”

  1. [11]
    The learned Magistrate observed that following the decision in Spencer, s 754 PPRA was amended by the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013, in force as of 17 October 2013. As amended the minimum penalty was as follows:

Minimum penalty –

(a)if the driver is a participant in a criminal organisation within the meaning of the Criminal Code, section 60A – 100 penalty units or 100 days imprisonment served wholly in a corrective services facility; or

(b)otherwise – 50 penalty units or 50 days imprisonment served wholly in a corrective services facility.”

  1. [12]
    It was that incarnation of s 754 PPRA that was considered by his Honour Judge Harrison in Forbes v Jingle [2014] QDC 204. As the learned Magistrate observed, his Honour held that the amendment effectively caused no change to the position as expressed by Henry J in Spencer. The learned Magistrate observed that Harrison DCJ’s interpretation has been followed by a number of other judges of the District Court of Queensland – Cronin v Commissioner of Police Service [2016] QDC 63 (Horneman-Wren SC DCJ); Sbresni v Commissioner of Police [2016] QDC 18 (Robertson DCJ); Skinner v Commissioner of Police Service [2016] QDC 138 (KentQC, DCJ); Powley v Queensland Police Service [2017] QDC 152 (Kent QC DCJ).
  1. [13]
    The learned Magistrate had regard to the explanatory memorandum of the Criminal Law (Criminal Organisations Disruption) Amendment Act Bill, which as his Honour observed was hastily prepared and substituted an earlier draft bill. The explanatory memorandum to that earlier bill[2] proposed an identical amendment to s 754 PPRA, and expressly stated that the amendment “specifically excludes the imposition of alternate penalties or sentencing options such as probation or a suspended sentence in lieu of the minimum penalty.”[3]
  1. [14]
    The learned Magistrate observed that the defendant relied primarily upon my judgment in R v Ham & Anor [2016] QDC 255, which was concerned with the minimum penalty imposed by s 50B(1)(e) Weapons Act 1990. As the learned Magistrate observed, that provision is almost identical to the section in question, although the mandatory minimum sentence for unlawful supply of a shortened firearm was 30 months’ imprisonment served wholly in a corrective services facility.
  1. [15]
    At [12] of his judgment, the learned Magistrate observed that the judgments concerning s 754 PPRA follow a reasoning that there is a three-fold basis for finding that probation and community service are available sentence options to the mandatory minimum provisions of that section:
  1. The legislation does not exclude the operation of ss 91 and 101 of the Penalties and Sentences Act 1992;
  1. ss 41 and 41A Acts Interpretation Act 1954 state that any penalty must not be more than the maximum nor less than the minimum. As there is no hierarchy of penalties in Queensland, it cannot be said that probation and/or community service do not fit between the maximum and minimum penalties;
  1. There is no need for recourse to extrinsic material pursuant to s 14B Acts Interpretation Act 1954 because there is no ambiguity in the legislation.
  1. [16]
    The learned Magistrate observed when referring to my decision in R v Ham & Anor that clearly I relied on what the Magistrate described as the “first and third limbs as it would be impossible to argue the second limb as there was no alternative fine option as with s 754”.
  1. [17]
    The learned Magistrate observed that the explanatory memorandum to the Weapons and Other Legislation Amendment Bill 2012, which introduced the enacted Weapons and Other Legislation Amendment Act 2012 was silent regarding the specific exclusion of probation and community service as sentencing alternatives to the penalty provisions in ss 50(1)(d)(iii) and 50B(1)(e). The learned Magistrate observed however that in the “Policy Objectives” of the explanatory memorandum, the following was stated:

The objective of the bill is to amend the Weapons Act 1990 (the Act), the Corrective Services Act 2006 (CSA) and the Penalties and Sentences Act (PSA) to impose mandatory minimum periods of imprisonment where the offences of unlawful possession (s 50), unlawful supply (s 50B) and unlawful trafficking (s 65) of weapons are committed in certain circumstances.” (emphasis added by Magistrate).

  1. [18]
    His Honour then went on to observe that two recent decisions have called into question the line of authority since the decision in Spencer in respect to s 754 PPRA: Doig v The Commissioner of Police, supra, and the sentencing remarks of Brown J in R v Peter Anthony Lewis, supra.
  1. [19]
    After quoting from both of these decisions, the learned Magistrate then went on to consider that the question of whether probation and community service were available sentencing options following a conviction for unlawful possession of a short firearm in a public place was a simple question of statutory interpretation. His Honour referred to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [47], Pearce and Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8th ed, 2014) 146 and an article by the Honourable Michael Kirby AC CMG entitled “Statutory Interpretation: The Meaning of Meaning” (2011) 35 Melbourne University Law Review 113. From that article, the learned Magistrate extracted the following principles:
  1. Where the applicable law is expressed in legislation the correct starting point for analysis is the text of the legislation and not judicial statements of the common law or even judicial elaborations of the statute.
  1. The overall objective of statutory construction is to give effect to the purpose of parliament as expressed in the text of the statutory provisions.
  1. In deriving meaning from the text, so as to fulfil the purpose of parliament, it is a mistake to consider statutory words in isolation. The proper approach demands the derivation of the meaning of words from the legislative context in which those words appear. The task requires a combined exercise involving analysis of the text, context and purpose (or policy) of the statute in question.[4]
  1. [20]
    His Honour considered that ss 14 and 14A Acts Interpretation Act 1954 generally supported that approach.
  1. [21]
    His Honour considered that the “text, context and purpose (or policy) of section 50(1)(d)(iii) is clear. The text is unambiguous. A ‘minimum penalty’ is prescribed. There is no mention of any other sentencing orders such as probation, community service, a suspended sentence or good behaviour order is made.”
  1. [22]
    His Honour considered that if it were necessary to refer to extrinsic material, then the “policy objectives” on the first page of the explanatory memorandum to the Weapons and Other Legislation Amendment Bill 2012 were enlightening. His Honour then reprinted the extract that had been previously quoted above.
  1. [23]
    His Honour said the following at [30]:

It is, with respect, an unattractive argument that the absence of a provision excluding probation and community service conclusively proves the contrary; that the legislature intended probation and community service to be included as a sentencing option. This is the crux of the defendant’s argument. The second limb of the line of reasoning in Spencer’s case and subsequent authorities dealing with Section 754. [sic] Section 754 authorities have limited application to Section 50(1)(d)(iii), because the former contains an alternative fine option enlivening the second limb argument in paragraph [12] above and absent in Section 50(1)(d)(iii).”

  1. [24]
    After referring to the maxim expressio unius est exclusio alterius,[5] His Honour then referred to the High Court judgment in Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94, in the joint judgment of Stephen, Mason, Aickin, Wilson and Brennan JJ, where it is observed that:

That maxim must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument: Saunders v Evans. It is ‘a valuable servant, but a dangerous master’: Colquhoun v Brookes.” (references omitted).

  1. [25]
    The learned Magistrate then considered that there may also be a further argument that the maxim generalia specialibus non derogant is applicable.[6]
  1. [26]
    Ultimately his Honour at [34] restated his position that on the basis of the clear wording of the section the minimum penalty of one year imprisonment to be served wholly in a corrective services facility was the only sentencing outcome available to the court following the defendant’s conviction for the offence in question.

Authorities that support the Appellant

  1. [27]
    It is important to note that the current form of s 754 PPRA is relevantly as follows:

Evasion offence

  1. (1)
    This section applies if, in the exercise of a power under an Act, a police officer using a police service motor vehicle gives the driver of another motor vehicle a direction to stop the motor vehicle the driver is driving.

(2)The driver of the motor vehicle must stop the motor vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances.

Minimum penalty – 50 penalty units or 50 days imprisonment served wholly in a corrective services facility.

Maximum penalty – 200 penalty units or three years imprisonment.

(3)If a court convicts a person of an offence against sub-section (2), the court, whether or not any other sentence is imposed, must disqualify the person from holding or obtaining a Queensland driver licence for two years.”

  1. [28]
    In Forbes v Jingle, supra, Harrison DCJ said the following:

[24]In Commissioner of Police Service (Qld) v Magistrate Spencer and Ors, (supra), Henry J considered the provisions of s 180A of the PSA, which provides:

‘A provision of an Act that provides to the effect that the maximum penalty for an offence may be a fine or imprisonment means that the sentencing court may order the offender —

(a)to pay a fine; or

(b)to be imprisoned; or

(c)to pay a fine and also to be imprisoned.

Example – ‘Maximum penalty – 100 penalty units or imprisonment for two years’ means the offender is liable to –

(a)a maximum fine of 100 penalty units; or

(b)maximum imprisonment of two years; or

(c)a maximum fine of 100 penalty units and also maximum imprisonment of two years.’

[25]For practical purposes, the maximum penalty here is expressed in similar terms to the example provided in s 180A. Section 91 of the PSA provides;

‘If a court convicts an offender of an offence punishable by imprisonment or a regulatory offence, the court may —

(a)whether or not it records a conviction – make for the offender a probation order mentioned in section92(1)(a); or

(b)If it records a conviction – make for the offender a probation order mentioned in section 92(1)(b).’

[26]The issue that arises here is whether or not the insertion of the words ‘served wholly in a corrective services facility’ after the reference to the minimum penalty of 50 penalty units or 50 days imprisonment means that this was not an offence punishable by imprisonment for the purposes of s 91 of the PSA.

[27]As Henry J said in Commissioner of Police Services (Qld) (supra) there appears to be no reason grounded in statute or principle why a period of probation ought to be regarded as a lesser penalty than a fine.

[28]Clearly, the offence is one to which s 180A of the PSA applies. Therefore, on its ordinary meaning, s 754 as amended still appears to me to be an offence punishable by imprisonment for the purposes of s 91 of the PSA. It follows, therefore, that the learned Magistrate had the power to make a probation order under s 92(1)(b) of the PSA.

[29]There are numerous ways in which the legislation could have been expressed so that the options of probation and/or good behaviour bonds were unequivocally excluded, but no attempt was made to do so.

[30]Even if it was necessary to resort to the purpose of the legislation that would relate to the PPRA and I have considered s 5 which sets out the purposes of the PPRA. There is nothing there which assists the Appellant.

[31]The wording of this section is not ambiguous or obscure and it is not, therefore, necessary to consider the extrinsic material.

[32]In the circumstances, I find that the Magistrate did not err in law in imposing the penalty that he did.

  1. [29]
    In Sbresni v The Commissioner of Police, supra, a concession was made by counsel for The Commissioner of Police that the Magistrate at first instance was in error in not following Harrison DCJ’s judgment in Forbes v Jingle. Robertson DCJ said the following:

“[7]As is indicated both in the transcript and in his Honour’s reasons, his Honour regarded the decision as not binding albeit persuasive, but took the view that his Honour was in error and he held that either the plain meaning of the words was that sentencing dispositions such as probation were not available to the sentencer, or in the event of ambiguity, the Attorney-General’s view (not the view of Parliament as his Honour said) expressed in the second reading speech which is set out in paragraph 17 of Judge Harrison’s judgment, made it crystal clear that the interpretation he favoured was the correct one.

[8]Both of these rulings by his Honour were argued by Mr Allen QC in his written submission on behalf of the appellant filed on the 18th of November 2015 to constitute errors, which in the House v the King sense, would enable this court to set aside the orders made and to resentence the appellant afresh. In her written outline filed on the 18th of December 2015 on behalf of the Commissioner of Police, Ms Kelly concedes that his Honour was in error in both respects.

[9]In my view, it would be inappropriate for me to go behind those concessions as the instructions to make those concessions came directly from The Commissioner of Police or his appropriate delegate.

[10]In proceeding to resentence, I do not comment on the legal issues that have been conceded to be errors by the respondent.

  1. [30]
    In Skinner v The Commissioner of Police, supra, Kent QC DCJ said the following:

“[10]The appellant also points to a further error of law in that the Acting Magistrate failed to appreciate the proper effect of s 754(2)(b) of the PPRA, which prescribes minimum and maximum penalties. Although the section provides for minimum sentences of fifty penalty or fifty days imprisonment, the appellant submits that the proper interpretation of the provision is that probation was not excluded as a sentencing option. The appellant referred to Commissioner of Police (Qld) v Magistrate Spencer & Ors [2013] QSC 202; Forbes v Jingle [2014] QDC 204 and Sbresni v The Commissioner of Police [2016] QDC 018.

[11]As set out in Forbes, the effect of s 754 in its present form does not exclude the operation of s 91 of the PSA which provides that where an offender is convicted of an offence punishable by imprisonment the Court may make a probation order. The relevant line of authority was helpfully traced in Sbresni, particularly at paragraphs [1] to [5] thereof. Thus in the present case, probation was an option for the appellant, including for the offence in contravention of s 754.

  1. [31]
    On 18 April 2019, His Honour Judge Long SC delivered his judgment in Campbell v Galea [2019] QDC 53, six days after the learned Magistrate delivered his judgment in the instant case. In that case the appellant, a police officer, appealed against the decision of the sentencing Magistrate to impose a probation order of two years for a number of offences, including failure to stop a motor vehicle contrary to s 754 PPRA. The original ground of appeal was as follows:

The decision in respect of sentence was an error in that it is inconsistent with the authority of Doig v The Commissioner of Police [2016] QDC 320 where it was held that sentences available to the court for this offence were limited to a fine or imprisonment or both.

  1. [32]
    An amended notice of appeal was filed out of time; no objection was made by the respondent to proceeding on the amended notice of appeal. His Honour then undertook an extensive discussion of the various decisions concerning the minimum penalties prescribed by s 754 PPRA from Spencer onwards. Relevantly, His Honour said the following:

[21]It is common ground that the decision in Forbes v Jingle was not the subject of any application for leave to appeal, and neither, until the decision in Doig v The Commissioner of Police [2016] QDC 320, was there any reasoned expression of any contrary view, in this Court. As is noted by the appellant, in Sbresni v The Commissioner of Police [2016] QDC 18, Forbes v Jingle was followed and applied but on the expressed concession of the respondent that the magistrate had erred in not doing so. And similar circumstances arose when a probation order was imposed in lieu of a sentence of imprisonment suspended after service of 50 days imprisonment, in Skinner v The Commissioner of Police. Further and in Cronin v The Commissioner of Police[7]the court proceeded on the basis that:

‘As already noted, the respondent concedes that the appeal against sentence should be allowed because the learned magistrate impermissibly fettered the sentencing discretion believing no sentencing options other than a mandatory minimum fine were available to him for the failure to stop charge. The appellant therefore must be resentenced.’

[22]In addition and for the respondent, references are made to:

  1. (a)
    R v Ham & Anor [2016] QDC 255, where the approach taken in Forbes v Jingle and Spencer, was applied to a conclusion that the minimum penalty proscribed by s50B(1)(e) of The Weapons Act 1990 does not exclude the operation of ss 91 and 101 of the Penalties and Sentences Act 1992;
  1. (b)
    R v Shannon Luke Hill, Ind. No. 399/17 at Beenleigh at 2 August 2017, where a probation order was imposed by the same judge who had dealt with R v Ham, for an offence pursuant to s 754(2) of the PPRA and it was pointed out that there was the same outcome by order of a different judge, in R v Greensmith & Ors, Ind. Nos. 503/17 and 139/18, at Southport on 19 March 2018.

[23]It is, of course, necessary to note that there may be other examples to be found, where judges of this Court have otherwise and appropriately imposed terms of imprisonment, requiring the service of 50 or more days in actual custody, for such an offence. However and apart from the decision in Doig, no other case is identified as containing any reasoned conclusion that is in conflict with the decision in Forbes v Jingle. And, significantly, it may also be noted that in addition to the history that has been noted, s 754(2) was the subject of legislative attention with effect from 9 December 2016 (coincidentally the same date as the decision in Doig), when it was amended, by the minimum penalty provision being wholly omitted and reinserted in the form in which it now appears, and was effectively the subject of the decision in Forbes v Jingle.’

  1. [33]
    At [27], His Honour observed that it was notable that in none of the decisions, including Doig was there any reliance placed upon the provision in the explanatory memorandum. His Honour observed that

“(t)here is good reason for this, in that the primary task in statutory interpretation is to focus upon the text of the provision and to consider it within the context and purpose of the provisions of the statute within which it appears.”

  1. [34]
    At [33], His Honour said as follows:

“[33]It may also be noted that the provision of a maximum penalty by way of an amount of fine or a stipulated term of imprisonment, is not uncommon in respect of offences that may be expected to be dealt with summarily. Such provisions have never and should not be taken as having the effect of limiting the sentencing actions available to a court to a fine or imprisonment. The clearest reason for this is that recognised in Spencer, in that the other sentencing options will be available by reference to the provisions of the PSA, which provide for them. For example and in relation to ‘intermediate’ or ‘community based’ orders, in the nature of probation and community service, respectively, s 92 and s 103 are engaged:

‘…if a court convicts an offender of an offence punishable by imprisonment or a regulatory offence.’
  1. [35]
    His Honour went on to consider the definitions of ‘penalty’ and ‘sentence’ in s 4 PSA.
  1. [36]
    In respect of the specific minimum terms imposed by s 754 PPRA, His Honour said this at [37]:

“…the singular expression, particularly in sub-paragraphs (d) and (e) of ‘a minimum as well as a maximum penalty’, ‘ the minimum’, ‘the maximum’ and ‘the specified penalty’ are not conducive to any conclusion that the prescription in s 754(2) is otherwise than as to the minimums and maximums for the respectively available penalties of fine or imprisonment. Neither can such provisions be taken as carrying any implication as to otherwise available options being necessarily excluded. To so conclude would require a hitherto unprecedented conclusion that such is also the effect of what is commonly employed in prescription of the maximum levels of fine or imprisonment that may be imposed for particular offences. And as has been noted, the PSA operates upon an expectation that such alternatives are available along with the other sentencing options made available by that statute.”

  1. [37]
    His Honour said the following:

“[40]As was recognised in Forbes v Jingle, a critical question is as to determining the effect of the addition of the words ‘served wholly in a corrective services facility’, to the pre-existing statement of the minimum penalty of 50 days imprisonment.

[41]As has been noted, the provision of the minimum and maximum parameters for the imposition of penalty by way of fine is the first indication contrary to any necessary implication that the intention was to require the imposition of the penalty of imprisonment, within the stated parameters, as any minimal requirement. Further and once it may be determined, as has been the subject of the reasons stated above, that the provision may be read disjunctively and as directed at stating the parameters within which the specific penalties of fine and imprisonment might be imposed, if appropriate, that may be taken as indication of the relative level of seriousness to be attached to the offending and in that way, relevant to but not necessarily inimicable to consideration of other sentencing options which remain open pursuant to the PSA. And in relation to the imposition of probation as a sentencing order, there is no necessary implication of exclusion because s 91 of the PSA is engaged by this offence being ‘punishable by imprisonment’.

[42]Accordingly, there is no need to attempt the unedifying task of attempting to compare the relative hierarchy of available sentencing options, either generally or in any specific circumstances. And neither is there any necessary implication otherwise to be found in the more specific conclusion in Doig and in respect of the contention expressly raised by the fourth ground of appeal, and with which I agree, that the effect of a minimum prescription for an order involving imprisonment, is a necessary implication of the exclusion of a wholly suspended term of imprisonment and the fixing of a parole release date earlier than the point at which an offender has served 50 days in actual custody. That is because such orders may only be made once it is determined that the imposition of a term of imprisonment is the appropriate response, and requires that the term of imprisonment be first imposed, and:

(a)In respect of an order suspending a term of imprisonment, ‘may be made only if the court is satisfied that it is appropriate to do so in the circumstances’; and

(b)in respect of the fixing of a parole release date, s 160A of the PSA is expressly made applicable ‘subject to any express provision to the contrary, in an Act, about a particular sentence’ and a specific example given is ‘a provision providing that a minimum term of imprisonment be served’.

[43]Another point which arises is as to why in circumstances where s 91 of the PSA is expressed to engage both of the types of probation order mentioned, respectively, in s 92(1)(a) and (b), that it is only the type of order mentioned in s 92(1)(a) that would be excluded. Although, it is necessary to note that s 92(1)(b) is expressed to operate upon the basis that the offender ‘is sentenced to a term of imprisonment for not longer than one year’, and for similar reasons it would follow that such a term may not be less than 50 days.

[44]It may also be that there is such inconsistency as to necessarily exclude the making of an intensive correction order. This is because s 112 of the PSA only allows the making of such an order ‘[i]f a court sentences an offender to a term of imprisonment of one year or less’ and s 113 states that ‘[t]he effect of the order is that the offender is to serve the sentence of imprisonment by way of intensive correction in the community and not in a prison.’

[45]Otherwise, it should be concluded that there is no express nor necessary implication of exclusion of sentencing options that are otherwise made available to a court dealing with an offence under s 754(2) of the PPRA. And further that the clear effect of expression of the maximum and minimum parameters relate only to the imposition of each respective sentencing option, where such an option is considered appropriate. (emphasis added).

[46]Accordingly and albeit for the reasons which have been expressed, it may be noted that the substantial history of acceptance of the effect of the decision in Forbes v Jingle, may be seen as not being coincidental or misplaced and it should be concluded that the sentencing magistrate did not err merely because she proposed probation for the failure to stop offence.”

  1. [38]
    It should be noted that it does not appear that Brown J’s remarks on sentence in R v Peter Anthony Lewis were referred to Long SC DCJ.
  1. [39]
    It is important to note that submissions were made to Long SC DCJ that was an appropriate case for a case to be stated to the Court of Appeal pursuant to s 227 Justices Act 1886. His Honour declined to do so, noting that the unsuccessful appellant had a right of appeal pursuant to s 118 District Court of Queensland Act 1967. No such appeal was brought.
  1. [40]
    In R v Ham & Anor, supra, I referred to the decision in Uittenbosch v Department of Corrective Services [2005] QCA 300, where Atkinson J at [12]-[23] 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;
  1. 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;
  1. That the third relevant principle of statutory interpretation in a case of ambiguity or obscurity, resort may be had to extrinsic material; s 14B Acts Interpretation Act 1954.
  1. [41]
    As I observed, those principles are uncontroversial and are longstanding.
  1. [42]
    In that case, the respondent submitted that the decisions of this court in Forbes v Jingle, Sbresni v Commissioner of Police, and Skinner v Commissioner of Police could be distinguished as the wording of s 15B Weapons Act 1990 was “differently and more precisely constructed” than s 754 PPRA. There was a concession that in respect of an offence against s 50B(1)(c) in respect of a category D, H or R weapon that only a maximum penalty was stated, namely 500 penalty units or 10 years imprisonment, a court could exercise its sentencing discretion and impose a probation order or community service order under the Penalties and Sentences Act 1992. However, it was argued that if the circumstances established that the offender was an adult, and one of the weapons unlawfully supplied was a short fire arm, and there was no reasonable excuse for unlawfully supplying the weapon, there was no discretion other than to impose the minimum term of two and a half years imprisonment, to be served wholly in a corrective services facility.
  1. [43]
    I said the following at [15]:

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 do 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.

Authorities that support the Respondent

  1. [44]
    In Doig, supra, Devereaux SC DCJ said the following:

[39]In my respectful opinion, there are two difficulties with the reasoning in Spencer and Forbes. First, it is not enough to say that because an offence is punishable by imprisonment a probation order is open if a specified minimum penalty is provided for. The question becomes, as Henry J said, what of the minimum penalty provision? If a court were to be required to assess the relative punitive strength of different orders, the question would not be whether, in the abstract of any particular case, probation is a less serious penalty than a fine, but whether probation would be a less serious penalty than a fine of about $5,500. In any case, the answer that a court must assess the relative punitive strength of different orders in each case requires that there be some hierarchy of sentences, which is the second difficulty.

[40]The scheme of the PSA does not provide a hierarchy of dispositions. The purposes of the Act, set out in s. 3 include:

(a)Collecting in a single Act general powers of courts to sentence offenders; and

(b)Providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and, in appropriate circumstances, ensuring that protection of the Queensland community is a paramount consideration.

[41]I respectfully agree with the representation, by the authors of Principles of Criminal Law in Queensland Western Australia[8], of the sentencing options in a circular diagram (Diagram 16.1 [16.160]). Each order is one of the sentencing tools available to a court. ... [After considering legislation in Western Australia, Victoria, The Northern Territory, Tasmania and New South Wales, his Honour continued] …

[47]Arguably, if there is an implied hierarchy of sentences in the Queensland legislation, probation and community service orders are more serious than a fine. These orders are contained in Part 5 Intermediate Orders, coming after Part 4 Fines and before Part 6 Intensive Correction Orders. But in my opinion the provisions of s. 754 do not require or allow a court to decide whether in a particular case, an order of probation or community service is ‘not less than’ a fine of 50 penalty units.

[48]The term ‘penalty’ bears a natural meaning – a punishment imposed for a breach. ‘Penalty’ is defined exclusively in PSA s. 4. It ‘includes any fine, compensation, restitution or other amount of money but does not include an offender levy.The provisions of the PSA suggest a penalty is something to be paid. Consistently, Schedule 1 to the Acts Interpretation Act provides that ‘penalty’ includes forfeiture and punishment

[49]The definition of ‘sentence’ in s. 4 of the PSA suggests a distinction between a penalty and imprisonment, and a distinction between those and other orders:

sentence –

  1. (a)
    means a penalty or a imprisonment ordered to be paid or served, or another order made, by a court after an offender is convicted, whether or not a conviction is recorded; (Italics added) and

(b)…..

[50]Once this distinction is understood, the meaning of the penalty provision in s. 754, taken with ss. 41 and 41A of the Acts Interpretation Act and s. 180A of the PSA, is tolerably clear. The range of sentences available to a court under s. 754 is limited to a fine or imprisonment or both not less than the minimum and not greater than the maximum. If this leads to a conclusion which seems unreasonable in a particular case, or which compels the imposition of a fine inconsistent with the capacity of a defendant to pay, that is the result of the legislation.” (references omitted)

  1. [45]
    As observed above, the decision in Doig was not followed by Long SC DCJ in Campbell v Galea.
  1. [46]
    Peter Anthony Lewis fell to be sentenced by Brown J on the following offences:
  • one count of unlawful supply of weapons;
  • one count of trafficking in a dangerous drug, namely methylamphetamine;
  • one count of possession of a relevant substance;
  • one count of possession of a dangerous drug;
  • one count of unlawful possession of weapons;
  • two counts of possession of a thing used in connection with trafficking in a dangerous drug;
  • one count of possession of a dangerous drug in excess of 2 grams;
  • a summary offence of possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act 1986;
  • three summary offences of possession of drug utensils or pipes;
  • two summary offences of unauthorised possession of explosives; and
  • one summary offence of possession of a restricted item.
  1. [47]
    In respect of the charge of unlawful supply of weapons, her Honour considered a submission from counsel for Lewis that probation was an option, relying on my decision in R v Ham & Anor. Her Honour said the following between pp 6 and 7 of her sentencing remarks:

Your counsel has submitted that, notwithstanding the wording of section50B of the Weapons Act (1990) (Qld), and in particular section 50B(1)(e), the minimum penalty applies only when a term of imprisonment is imposed and the section does not exclude the operation of section 91 of the Penalties and Sentences Act 1992 (Qld), that is, it does not preclude a sentence of probation. In particular, it submits that in order to exclude the operation of section 91 which applies to an offence ‘punishable by imprisonment’, Parliament needed to go much further than it did, and in that regard the defence refers to section 305 of the Criminal Code Act 1899 (Qld). It draws support from a first-instance decision in the District Court of R v Ham [2016] QDC 255. That case, which considered the operation of s 50B(1)(e) and indicated that it was clear on the wording of section 50B(1)(e) that the provision of a minimum sentence under subsection (e), does not exclude the application of section 91 and 101 of the Penalties and Sentences Act 1992 (Qld), which otherwise applied.

Some support was also sought to be drawn from a decision of Justice Henry in a case of Commissioner of Police Service v Magistrate Spencer & Ors [2013] QSC 202, which was in reference to section 754 of the Police Powers and Responsibilities Act 2002 (Qld) which referred to a minimum penalty of 50 penalty units. In that case, his Honour said:

Where, as here, a minimum as well as a maximum penalty is specified then the penalty must not be less than the minimum and not more than the maximum.

However, there appears to be no reason grounded in statute or principle why a period of probation ought to be regarded as a lesser penalty than a fine.

That cannot be said to be the case in relation to the minimum penalty here of two and a-half years in comparison to probation. I should say, in fairness, defence Counsel did not submit that that was the case, but rather relied inter alia on the fact that there was not a specific exclusion of the Penalties and Sentences Act 1992 (Qld).

My job is to apply the law and not to circumvent what Parliament has decided. With all due respect of the submissions made by your Counsel and the decision of Judge Chowdhury, it appears to me that, on the basis of the wording in the section and the specific provision for a minimum penalty of two and a-half years imprisonment served wholly in a Corrective Services facility, particularly when regard is had to section 41 of the Acts Interpretation Act 1954, the section does constrain the Court to impose a minimum sentence of a two and a-half years imprisonment to be served wholly in a Corrective Services facility, notwithstanding that I note the terms of the maximum penalty that is provide for in section 50B(1)(c)(i).

The wording in subsections (d) and (e), which are the provisions directed to the question of the minimum penalty only apply in confined circumstances. They provide specifically for the minimum penalty not applying where the person has a reasonable excuse, which is provided for in the section. Some further support for this construction is also given by section 185B of the Corrective Services Act 2006 (Qld), which applies to the provision where a minimum penalty including an offence under section 50B, amongst other sections.

In terms of the reference to penalty units which are referred to in subsection (c)(i), which are not referred to in the minimum penalty provision, that appears to set a ceiling for penalty units that may be imposed rather than interfering with the minimum penalty that is provided for in section 50B(1)(e). It is not immediately evident to me as to why (e) is confined to a short firearm, which is a defined term. However, the section is clear in being directed to a short firearm and does not alter what I see as clear wording of the provision and by which I consider it cannot operate in conjunction with section 91 of the Penalties and Sentences Act.

Having said that, the question is whether this is a case where it would be appropriate to propose probation in any event. I am not satisfied that it is one where probation would be justified. While your Counsel has submitted that you possessed the particular weapon because of your anxiety that you were suffering at the time, which is referred to by your psychologist as being a substance-induced anxiety disorder where your constant vigilance was caused by your perceived threats to your personal safety and your subsequent behaviour represented a panic reaction to the specific anxiety, it does not sit with the circumstances of the offending.

In particular it does not sit with the fact that you had indicated that you knew somebody who could provide the Glock and that you then organised to obtain the firearm, indicating to the undercover police officer that you would contact someone once they had contacted their supplier and would let them know the outcome.

  1. [48]
    The respondent also relies on the decision of the High Court of Australia in Magaming v The Queen (2013) 252 CLR 381, where the following was said in the joint judgment of French CJ and Hayne, Crennan, Kiefel and Bell JJ:

“[47]As the appellant rightly submitted, adjudging and punishing criminal guilt is an exclusively judicial function. In very many cases, sentencing an offender will require the exercise of a discretion about what form of punishment is to be imposed and how heavy a penalty should be imposed. But that discretion is not unbounded. Its exercise is always hedged about by both statutory requirements and applicable judge-made principles. Sentencing an offender must always be undertaken according to law.

[48]In Makarian v The Queen,[9] the plurality observed ‘[l]egislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks.’ The prescription of a mandatory minimum penalty may now be uncommon but, if prescribed, a mandatory minimum penalty fixes one end of the relevant yardstick.

[49]The appellant may be right to have submitted, as he did, that, even at 1901, mandatory minimum custodial sentences were ‘rare and exceptional’. But as the appellant’s submission implicitly recognised, mandatory sentences (including, at 1901, sentence of death and, since, sentence of life imprisonment) were then, and are now, known forms of legislative prescription of penalty for crime. Legislative prescription of a mandatory minimum term of imprisonment for an offence was not, and is not, on that account alone inconsistent with Ch III.”[10]

Hierarchy of courts

  1. [49]
    In Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, Moffitt P said this at 177:

The obligation of every court loyally to follow decisions of any court superior to it has been often stated. At times it may appear to a judge or to an appeal court that the reasoning or absence of it in a binding decision renders that decision unsatisfactory. However, the law concerning precedent, based as it is on the need for certainty in the law, absolutely binds him to follow the precedent. He is as much bound by the law of precedent and the law so pronounced as he is by any other law. The law provides its own rules to admit of flexibility. These rules, which are part of the binding law of precedent, permit departure from prior erroneous decisions, but only in prescribed circumstances. The law binding on all does not include any right of a court to depart from a decision of a superior court and hence one binding upon it upon some basis, such as that some matter is considered to have been overlooked by the superior court or for some other reason it appears to be wrong. It does not permit it to disregard a binding decision of an appellate court on some view based on the reasoning of judges in a decision of an ultimate appellate court which does not overrule the binding decision.”

  1. [50]
    In the same case, Priestley JA said at 185:

The system of precedent requires that judges apply the law as laid down by courts to which appeals lie from them, mediately or immediately, and whether or not they agree with that law.

  1. [51]
    Sir Anthony Mason discussed the doctrine of precedent and the hierarchy of courts in an article entitled “The Use and Abuse of Precedent” (1988) 4 Australian Bar Review 93. At 93-94 His Honour said this:

More than anything else the doctrine of precedent makes the common law continuous, consistent and predictable. And it gives legal reasoning, that is, common law legal reasoning, its distinctive quality, a quality that differentiates legal reasoning from other forms of reasoning. The dependence of legal reasoning on argument by analogy is very much a by-product of our adherence to precedent … Inconsistent decisions are incontestable indications that a legal system is both unjust and irrational. So inconsistency quickly brings the law into disrepute. Precedent plays an important part in eliminating inconsistency, thereby promoting justice and rationality. Likewise, precedent enhances continuity and predictability which are also essential qualities in an acceptable system of law. In order that the citizen may order his affairs and make decisions, the courts must apply uniformly rules and principles that are ascertainable in advance. Brandeis J summed up this point of view when he said in a dissenting judgment, (Burnet v Coronado Oil & Gas Co. 285 (1932) U.S. 393 at 406) in most matters it is more important that the applicable rule of law be settled than that it be settled right’. And this approach has much to commend it where, as in commercial law, businessmen require a substratum of settled rules on which to make their contracts. On the other hand, as Brandeis J also pointed out, (Burnet (supra)), in some areas of constitutional law at least, it is more important that things be settled correctly than that they be settled.

  1. [52]
    His Honour then went on to say this at 95-96:

Precedent signifies the respect paid to a decision of a superior court. Such a decision, though not binding, is a persuasive precedent for courts above it. But in its strict sense precedent signifies the obligation of a court, whatever its own inclinations may be, to accept and apply a decision of a court above it in the hierarchy to which it belongs. Thus the Magistrates' Court is bound to apply the decisions of the courts ranking above it in the Victorian curial hierarchy reaching all the way to the High Court of Australia, for the High Court is the apex of the curial hierarchy in Victoria. It is the ultimate court of appeal from Victorian courts just as the Judicial Committee of the Privy Council was at one time. When we speak in this context of curial hierarchy or hierarchy of courts we refer to courts which are connected through the line of appeal. Both the reason and the sanction for the doctrine of precedent rest in the power of the higher court to correct the decision of the lower court if it fails to observe the doctrine.”

  1. [53]
    In Broome v Cassell & Co [1972] AC 1027, Lord Hailsham of St Marylebone LC said this at 1054:

Moreover, it is necessary to say something of the direction to judges of first instance to ignore Rookes v. Barnard as ‘unworkable.’ As will be seen when I come to examine Rookes v. Barnard in the latter part of this opinion, I am driven to the conclusion that when the Court of Appeal described the decision in Rookes v Barnard as decided ‘per incuriam’ or ‘unworkable’ they really only meant that they did not agree with it. But, in my view, even if this were not so, it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way and, if it were open to the Court of Appeal to do so, it would be highly undesirable. The course taken would have put judges of first instance in an embarrassing position, as driving them to take sides in an unedifying dispute between the Court of Appeal or three members of it (for there is no guarantee that other Lords Justices would have followed them and no particular reason why they should) and the House of Lords. But, much worse than this, litigants would not have known where they stood. None could have reached finality short of the House of Lords, and, in the meantime, the task of their professional advisers of advising them either as to their rights, or as to the probable cost of obtaining or defending them, would have been, quite literally, impossible. Whatever the merits, chaos would have reigned until the dispute was settled, and, in legal matters, some degree of certainty is at least as valuable a part of justice as perfection.

The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. Where decisions manifestly conflict, the decision in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718 offers guidance to each tier in matters affecting its own decisions. It does not entitle it to question considered decisions in the upper tiers with the same freedom. Even this House, since it has taken freedom to review its own decisions, will do so cautiously. That this is so is apparent from the terms of the declaration of 1966 itself where Lord Gardiner L.C. said [1966] 1 W.L.R. 1234:

Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

This announcement is not intended to affect the use of precedent elsewhere than in this House.’

It is also apparent from the recent case of Reg. v. National Insurance Commissioner, Ex parte Hudson [1972] A.C. 944, where the decision in Reg. v. Deputy-Industrial Injuries Commissioner, ex parte Amalgamated Engineering Union, in re Dowling [1967] 1 A.C. 725 came up for review over the 1966 declaration, that the House will act sparingly and cautiously in the use made of the freedom assumed by this declaration.

In addition, the last paragraph of the declaration as quoted above clearly affirms the continued adherence of this House to the doctrine of precedent as it has been hitherto applied to and in the Court of Appeal.”

  1. [54]
    Part 9 Justices Act 1886 provides a hierarchy of appeals from decisions of a Magistrate dealing with a complaint for an offence or breach of duty. An appeal lies in the first instance to a judge of the District Court of Queensland: s 222 of the Act. Certain exceptions are applied under sub-section (2).
  1. [55]
    Generally an appeal under s 222 is by way of re-hearing on the evidence, subject to leave granted to adduce fresh, additional or substituted evidence: s 223 of the Act. The powers of a District Court Judge on such an appeal are prescribed by ss 224 and 225.
  1. [56]
    Pursuant to s 227, a District Court Judge may state a special case for the opinion of the Court of Appeal on any question or questions of law arising upon the facts of the case. Also, an appeal lies to the Court of Appeal with the leave of that court from a decision made by a District Court Judge under s 222 of the Act. This further appeal is provided by s 118 District Court of Queensland Act 1967. The principles relating to the Court of Appeal exercising its jurisdiction under this section were considered in McDonald v Queensland Police Service [2018] 2 Qd R 612.
  1. [57]
    The final court in the hierarchy is of course the High Court of Australia.
  1. [58]
    The District Court of Queensland is not bound by the decision of a single judge of the Supreme Court of Queensland sitting in the Trial Division of that court. Of course any such decision would always be afforded great respect, and would often have considerable persuasive value.

Principles relating to the doctrine of precedent

  1. [59]
    In Queensland v The Commonwealth (1977) 139 CLR 585, Gibbs J (as he then was) was faced with the dilemma of whether he should follow the decision of the majority in Western Australia v The Commonwealth (1975) 134 CLR 201, notwithstanding that he believed the majority to be wrong. His Honour said this at 598 – 601:

It then becomes necessary for me to decide whether I ought to follow the decision of the majority in Western Australia v. The Commonwealth, notwithstanding that I believe it to be wrong. There is of course no doubt that this Court is not bound by its own decisions. Further, it has been said, and with some justification, that ‘the doctrine of stare decisis should not be so rigidly applied to the constitutional as to other laws’ (see the passage cited by Isaacs J in Australia Agricultural Co. v. Federated Engine-Drivers and Firemen’s Association of Australasia) because in such cases the Parliament cannot legislate to correct the errors of the courts. It has been said, too, that since this Court has the duty of maintaining the Constitution, it has a duty to overrule an earlier decision if convinced that it is plainly wrong. In the case already cited, Isaacs J. went on to say:

Our sworn loyalty is to the law itself, and to the organic law of the Constitution first of all. If, then, we find the law to be plainly in conflict with what we or any of our predecessors erroneously thought it to be, we have, as I conceive, no right to choose between giving effect to the law, and maintaining an incorrect interpretation. It is not, in my opinion, better that the Court should be persistently wrong than it should be ultimately right.’

But like most generalisations, this statement can be misleading. No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court.

It would be futile to attempt to state any succinct general principle by which the Court should be guided in deciding whether to overrule an earlier decision of its own. Some cases may be clear enough. On the one hand the Court would be slow to disturb a decision which applied a principle that had been carefully worked out in a succession of cases, and had been more than once reaffirmed. On the other hand, a judgment which had been given per incuriam, and was in conflict with some other decision of the Court, or with some well-established principle, might be readily reviewed. However the present case does not lie at either of these extremes, and I have had much difficulty in deciding what course my duty requires. As the plaintiffs have urged, the decision Western Australia v. The Commonwealth was recently given, and by a narrow majority. It has not been followed in any other case. It involves a question of grave constitutional importance. When it is asked what has occurred to justify the reconsideration of a judgment given not two years ago, the only possible answer is that one member of the Court has retired, and another has succeeded him. It cannot be suggested that the majority in Western Australia v. The Commonwealth failed to advert to any relevant consideration, or overlooked any apposite decision or principle. The arguments presented in the present case were in their essence the same as those presented in the earlier case. No later decision has been given that conflicts with Western Australia v. The Commonwealth. Moreover, the decision has been acted on; senators for the Territories have been elected under the legislation there held valid. To reverse the decision now would be to defeat the expectations of the people of the Territories that they would be represented, as many of them believe that they ought to be represented, by senators entitled to vote — expectations and beliefs that were no less understandable because in my view they were constitutionally erroneous, and that were encouraged by the decision of this Court.

When, in The Tramways Case [No. 1] Barton J. said that ‘Changes in the number of appointed Justices can…never of themselves furnish a reason for review’ of a previous decision, it may be that not all who had become his brethren agreed with him, but his statement in my respectful opinion ought to be regarded as, in general, correct, having regard to ‘the need for continuity and consistency in judicial decision’ to which he there referred. Still less should the replacement of one Justice by another in itself justify the review of an earlier decision. Having considered all the circumstances that I have mentioned I have reached the conclusion that it is my duty to follow Western Australia v. The Commonwealth, although in my view it was wrongly decided.

I feel bound to state now a qualification to the conclusion I have just expressed. I have said that in reaching that conclusion I have been influenced by the fact that the only circumstance that has occurred since the decision in Western Australia v. The Commonwealth was given that might justify a reconsideration of that decision is that one Justice has gone and another has taken his place. The other supervening circumstance, that the legislation there upheld as valid has been given effect by the election of senators, provides an argument against, not for, a review of the decision. Having regard to the very great importance, in preserving the federal balance of the Constitution, which attaches to Pt II of Ch. I of the Constitution, I consider that if the Parliament were further to distort the federal balance by legislating to provide for the election of more senators for the Territories, that would be a circumstances that might be regarded as sufficient to justify a reconsideration of the question whether Western Australia v. The Commonwealth should continue to be followed.” (emphasis added; references omitted)

  1. [60]
    Stephen J said the following at 602 – 603:

This Court has always asserted its power to review its previous decisions; however to do so is exceptional and will only be undertaken after the most careful scrutiny of the precedent authority in question and after a full consideration of what may be the consequences of doing so. These two propositions require no citation of authority, they are axioms of our judicature. They are, however, propositions which differ very much in their respective qualities. The first is absolute in character and unqualified in meaning. The second is replete with adjectival qualifications and it is its precise application to the present case that I regard as decisive of the outcome of these present actions…

In these proceedings opposing counsel have each marshalled sets of divergent considerations which are set to support their competing submissions. Despite the powerful submissions which have been urged justifying a reconsideration of Western Australia v. The Commonwealth submissions the attraction of which has not been diminished by the fact that I formed one of the minority in that case, I have concluded that it should not be reviewed but should be regarded as an authority determinative of this appeal. I will not set out all the rival considerations which have been urged but will confine myself to those matters which, together, have, for me, proved conclusive.

The first concerns the nature of the precedent authority in question. It is a very recent decision in which all members of the Court participated and in which, after full argument, a majority, in elaborately reasoned judgments, dealt in specific terms and as the principal point for decision with the very matter now in question, the effect of the concluding words of s. 122 of the Constitution.

The second relates to the nature of the subject-matter for decision; what was in issue was the interpretation of the words of the section in their context. There existed no precedent cases nor any settled principles of the law which provided clear guidance. The case was very much one upon which different minds might reach different conclusions, no one view being inherently entitled to any pre-eminence as conforming better than others to principle or to precedent. In such a context phrases such as ‘plainly wrong’ and ‘manifest error’, which have gained currency in this field, are merely pejorative.

The third matter concerns the consequences involved in a reconsideration. As a result of Western Australia v. The Commonwealth the peoples of the Territories have now attained representation in the Senate. To deny to these citizens of Australia the right to representation in the national Parliament was a course to which I considered that the words of the Constitution compelled me when writing my judgment in that case. I also recognized that the effect of my judgment might be to jeopardize their existing rights of representation in the House of Representatives. These considerations made more difficult the task of arriving at a decision in that case. But it is one thing to contemplate such consequences as flowing from one’s perceived operation of the mandatory effect of the Constitution; it is quite another to regard them as the acceptable price of a personal decision to treat a particular precedent authority as appropriate for reconsideration. The force of this consideration is not, I think, diminished by an appreciation that the continued Territory representation in the legislature involves a corresponding dilution of the strength of the representation of peoples of the States in that legislature.

These are the principal reason which have led me to conclude that I should regard myself as bound to follow the precedent authority of Western Australia v. The Commonwealth; this despite the fact that the arguments of counsel under present cases would not have led me to decide that case at all differently.” (emphasis added)

  1. [61]
    There are numerous authorities in the various Australian states and territories concerning the power of an intermediate Court of Appeal to depart from its earlier decisions. In R v BDX (2009) 24 VR 288, the Court of Appeal of Victoria referred to the well-known English decision in Young v Bristol Aeroplane Co Limited [1944] KB 718.[11] The Court of Appeal said this at 314:

As can be seen from the above, in England the Court of Appeal is bound by its own previous decisions. It makes no difference how many members of that court sit on any particular case, the rules as to stare decisis remain the same.

The position in Victoria is, in certain respects, quite different. The Court of Appeal in this State is not bound by its own previous decisions. Nor does it regard itself as bound by previous decisions of the Full Court.

None the less the doctrine of stare decisis remains important, and the court will be slow to depart from one of its own earlier decisions. If there is a difference when the court is constituted by five judges, as has been suggested, that difference is likely to be marginal.

That takes us back to the present case, and ground 3. Regrettably, modern statutes are often drafted in a style that is highly convoluted, and presents difficulties of interpretation. Section 607 is no exception.

The starting point in construing any statutory provision must always be the language of the section itself. However, the task of construction also involves consideration of context and purpose. In that task, as in so many other areas of the law, reasonable minds may differ as to what ought to be the correct outcome. (emphasis added)

  1. [62]
    In Nguyen v Nguyen (1989 – 1990) 169 CLR 245, the joint judgment of Dawson, Toohey and McHugh JJ observed at 268 that:

(t)he extent to which the Full Court of the Supreme Court of a State regards itself as free to part from its own previous decisions must be a matter of practice for the court to determine for itself.”

Their Honours went on to say the following at 269:

Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: see Queensland v. The Commonwealth) per Aickin J.” (References omitted).

  1. [63]
    These principles were considered by the Court of Appeal in Sweeney v Volunteer Marine Rescue Currumbin Inc v Suncorp General Insurance Limited [2000] QCA 455. The President, with whom Cullinane and Wilson JJ agreed, said this at p. 3 of her judgment:

An intermediate Court of Appeal will usually follow its own decisions. In Nguyen v Nguyen (1989 – 1990) 169 CLR 245 at 269, Dawson, Toohey and McHugh JJ noted:

Where a Court of Appeal holds itself free to depart from an earlier decision, it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law (see Queensland v The Commonwealth per Aickin J).’

The circumstances in which an intermediate appellate court will be free to depart from its previous decisions were discussed more fully by the Federal Court in the recent Telstra Corp Ltd v Treloar [2000] FCA 1170; N 644 of 1999, 22 September 2000 at [22] – [28]. The following comments at [27] – [28] are particularly apposite to the present case:

‘The problem is very real when what is at issue is the construction of a statute. For one thing, statutory language is often ambiguous. Courts can struggle to determine the legislative intent. It is often impossible to discover any legislative intent. In many instances, the generality of the statutory language is deliberate and allows the Court to develop a body of law to fill the gaps. This may lead to disagreement among Judges about what the statute means. It would be sound policy that once that intent has been discerned by an Appellate Court, then that should be the end of the matter. The view which we prefer is that unless an error in construction is patent or has produced unintended and perhaps irrational consequences not foreseen by the Court that created the precedent, the first decision should stand.

The need for certainty is paramount when legislation of this type has been construed. Those injured in motor vehicle accidents and their legal representatives need to understand clearly their obligations under the statute.” (emphasis added)

  1. [64]
    I have been unable to find any definitive authority on the status of the District Court when sitting on appeal from a decision of the Magistrates Court. Logically it would be classified as an intermediate appellate court. Support for this view can be found in Lassanah v State of New South Wales [2009] NSWDC 73 where Gibson DCJ said this at [33]:

Intermediate appellate courts are bound by previous decisions and should only depart from authority (including authority from co-ordinate jurisdictions) if that court is plainly wrong and there are compelling reasons to do so: Gett v Tabet [2009] NSWCA 76 at [277] – [278], [281] and [286]. This is all the more the case for intermediate trial courts such as the District Court.

Mandatory sentences

  1. [65]
    In Palling v Corfield (1970) 123 CLR 52, Barwick CJ said this at 58:

It is beyond question that the Parliament can prescribe such penalty as it thinks fit for the offences which it creates. It may make the penalty absolute in the sense that there is but one penalty which the court is empowered to impose and, in my opinion, it may lay an unqualified duty on the court to impose that penalty. The exercise of the judicial function is the act of imposing the penalty consequent upon conviction of the offence which is essentially a judicial act. If the statute nominates the penalty and imposes on the court a duty to impose it, no judicial power or function is invaded: nor, in my opinion, is there any judicial power or discretion not to carry out the terms of the statute. Ordinarily the court with the duty of imposing punishment has a discretion as to the extent of the punishment to be imposed; and sometimes a discretion whether any punishment at all should be imposed. It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime. But whether or not such a discretion shall be given to the court in relation to a statutory offence is for the decision of the Parliament. It cannot be denied that there are circumstances which may warrant the imposition on the court of a duty to impose specific punishment. If Parliament chooses to deny the court such a discretion, and to impose such a duty, as I have mentioned the court must obey the statute in this respect assuming its validity in other respects. It is not, in my opinion, a breach of the Constitution not to confide any discretion to the court as to the penalty to be imposed.

  1. [66]
    In Queensland there are a number of mandatory sentences prescribed by legislation for a variety of offences. The punishment for the crime of murder provided by s 305 Criminal Code is an obvious example, and one of long-standing. It currently states as follows:

(1)Any person who commits the crime of murder is liable to imprisonment for life, which cannot be mitigated or varied under this Code or any other law or is liable to an indefinite sentence under part 10 of the Penalties and Sentences Act 1992.

(2)If the person is being sentenced—

(a)on more than 1 conviction of murder or

(b)on 1 conviction of murder and another offence of murder is taken into account; or

(c)on a conviction of murder and the person has on a previous occasion been sentenced for another offence of murder;

the court sentencing the person must make an order that the person must not be released from imprisonment until the person has served a minimum of 30 or more specified years of imprisonment, unless released sooner under exceptional circumstances parole under the Corrective Services Act 2006.

(3)Subsection (2)(c) applies whether the crime for which the person is being sentenced was committed before or after the conviction for the other offence of murder mentioned in the paragraph.

(4)If—

(a)the person killed was a police officer at the time the act or omission that caused the person’s death was done or made; and
(b)the person being sentenced did the act or made the omission that caused the police officer’s death—
(i)when

(A)the police officer was performing the officer’s duty; and

(B)the person knew or ought reasonably to have known that he or she was a police officer; or

(ii)because the police officer was a police officer; or
(iii)because of, or in retaliation for, the actions of the police officer or another police officer in the performance of the officer’s duty;
the court sentencing the person must make an order that the person must not be released from imprisonment until the person has served a minimum of 25 or more specified years of imprisonment, unless released sooner under exceptional circumstances parole under the Corrective Services Act 2006.

(5)The Penalties and Sentences Act 1992, section 161Q also states a circumstance of aggravation for the crime of murder.

  1. [67]
    Aside from the mandatory minimum sentences purported to be imposed by the Weapons Act 1990 and s 754 PPRA there are of course mandatory minimum licence disqualification provisions in legislation such as the Transport Operations (Road Use Management Act) 1995.

Consideration

  1. [68]
    In R v Ham & Anor I stated that there was a “superficial attraction” to the argument that was accepted by the learned Magistrate in the court below, and clearly accepted by Devereaux DCJ in Doig and Brown J in Lewis. On being required to reconsider the issue at some length, I concede that the argument is more than superficial and has real substance.
  1. [69]
    However, I remain of the same view of the relevant provisions of the Weapons Act 1990 that I expressed in R v Ham & Anor. That is consistent with the interpretation that has now been followed by a significant number of judges of this Court, as helpfully analysed by Long SC DCJ in Campbell v Galea. That line of precedent should be followed, consistent with the principles I enunciated earlier.
  1. [70]
    I need to deal with the argument that there is some significant difference between the wording of s 754 PPRA and the offences created by the Weapons Act 1990. In respect of the former section, the maximum penalty is 200 penalty units or three years imprisonment. The minimum penalty is 50 penalty units or 50 days imprisonment served wholly in a corrective services facility. As is clear the minimum penalty leaves to a sentencing court a discretion whether the minimum fine should be imposed or the minimum period of imprisonment should be imposed. No such choice exists in the offence provision in question under the Weapons Act 1990. However in my view that distinction is hardly determinative of the issue. The critical issue is whether the words “imprisonment served wholly in a Corrective Services facility” necessarily excludes ss 91 and 101 Penalties and Sentences Act 1992.
  1. [71]
    The phrase “Corrective Services facility” is defined in Schedule 4 Corrective Services Act 2006. It means:
  1. (a)
    a prison; or
  1. (b)
    a community correction centre; or
  1. (c)
    a work camp.
  1. [72]
    “Prison” is further defined by Schedule 4 as a place declared to be a prison under s 149(1)” of the Act. “Work camp” is defined as “a place declared to be a work camp under s 151(1)(a)(ii). There is no separate definition in Schedule 4 for a “community corrections centre”; there is reference to “community corrections centre” in s 416.
  1. [73]
    In brief, s 149 of that Act simply states that a regulation may declare a place to be a prison and assign a name to a prison. Similarly, s 151 of the Act authorises a minister by gazette notice to declare a place to be a community corrections centre or a work camp, and to assign a name to a community corrections centre or a work camp. In that section “place” includes premises, part of premises and a vehicle.
  1. [74]
    As the respondent in its supplementary outline of submissions highlights, these sections need to be considered in the light of ss 6 and 7 Corrective Services Act 2006. Relevantly, a person sentenced to a period of imprisonment must be detained for the period in a corrective services facility, and the person sentenced to the period of imprisonment is taken to be in the custody of the Chief Executive. Significantly, a watchhouse is not a corrective services facility.
  1. [75]
    In my view the offence of possessing a short firearm in a public place pursuant to s 50(1)(d)(iii) Weapons Act 1990 is clearly an offence punishable by imprisonment. With respect, the learned Magistrate misconceived the comments I made in R v Ham & Anor that it would have been easier for the legislature to specifically state that the provisions relating to probation and community service were excluded. Contrary to what the Magistrate said at [30] of his reasons, I did not say that the absence of a provision excluding probation and community service conclusively proved the contrary, namely that the legislature intended probation and community service to be included as a sentencing option.
  1. [76]
    Both ss 91 and 101 PSA use the phrase “punishable by imprisonment”. The Oxford Dictionary of English (3rd Edition) relevantly defines “punishable” as being “subject to a judicial punishment”. The phrase was specifically considered in Prevato v Miszalski & Anor (1986) 19 A Crim R 330. Wilcox J said this at 339:

It is a fundamental requirement of article II that, to be extraditable, an offence must be ‘punishable’ by a punishment not less severe than imprisonment for two years. It is a characteristic of each of the five offences in respect of which the applicant was committed to prison that the maximum punishment which might be imposed under the Italian Penal Code is a term of imprisonment exceeding two years. But, in relation to each offence, provision is made for a minimum term of less than two years and, at least on one interpretation of article 225 of the Code, this minimum term is subject to further reduction in the case of offences committed by ‘responsible minors’, that is persons aged between fourteen and eighteen years. Under those circumstances counsel for the applicant argues that none of the offences falls within article II. He says that since it is lawfully open to the Italian court to impose in a particular case a sentence of less than two years imprisonment it cannot be said that the offence is ‘punishable’ by imprisonment for more than two years. The offence may lawfully be punished, and in a particular case may in fact be punished, by a lesser term of imprisonment. Counsel draws attention to the circumstance that this Treaty, unlike the Treaty with Sweden referred to in Puharka v Webb [1983] 2 NSWLR 31 at 36, does not speak of a maximum term of imprisonment of two years.

I do not accept the construction of article II urged on behalf of the applicant. It appears to me erroneous to approach the matter by reference to the available minimum sentence. The requirement of the article is that ‘the offence is … punishable by a punishment not less severe than imprisonment … for two years’. In other words, the offence must, in law, be able to be punished by such a term. An offence is so able notwithstanding that it may also be able to be punished by imprisonment for a lesser term. Such an interpretation not only accords with the natural meaning of the words but is sensible in application.”

  1. [77]
    It is important to note that s 754 PPRA was amended following the decision of Harrison DCJ in Forbes v Jingle by s 307 Serious and Organized Crime Legislation Amendment Act 2016. That section omitted the minimum penalty in sub-section (2) of s 754 PPRA as considered by Harrison DCJ, and expressed the minimum penalty in its current form, namely 50 penalty units or 50 days imprisonment served wholly in a Corrective Services facility. Parliament must be taken to have been aware of Harrison DCJ’s judgment.
  1. [78]
    In respect of the relevant offence under the Weapons Act 1990 the Parliament could have added the words similar to s 305 Criminal Code, “which cannot be mitigated or varied under this Act or any other law”, or a further sub-section could have been added which expressly excluded the operation of ss 91 and 101 Penalties and Sentences Act 1992.
  1. [79]
    The last suggestion is not a mere novelty that I have conjured out of thin air. I have attached as an appendix to this judgment a list of statutory and regulatory offences in Queensland which specifically exclude the operation, for example, of ss 23 and 24 Criminal Code.[12]
  1. [80]
    I need but give a couple of examples of this from the appendix. In respect of the Fair Trading Act 1989, s 97 entitled “Proceedings for an Offence Against this Act” states as follows:

The provisions of the Criminal Code, section 23 to the extent that it provides exculpation from criminal responsibility for an act or omission that constitutes an offence against this Act, and the provisions of the Criminal Code, section 24 do not apply in respect of any offence against this Act.”

  1. [81]
    Similarly, s 26 Transport Operations (Marine Pollution) Act 1995, entitled “Discharge of Oil into Coastal Waters Prohibited” states as follows:

(1)If oil is discharged from a ship into coastal waters, the following persons each commit an offence—

(a)the ship’s owner;

(b)the ship’s master;

(c)another member of the ship’s crew whose act caused or contributed to the discharge, unless the member was complying with an instruction from the master or of someone authorised by the master to give the instruction.

Maximum penalty—

(a)for an individual—5,000 penalty units; or

(b)for a corporation—100,000 penalty units.

(2)Subsection (1) applies despite the Criminal Code, sections 23 and 24.

  1. [82]
    I therefore conclude that the learned Magistrate was in error in determining that the only sentencing outcome available to him was one year’s imprisonment served wholly in a Corrective Services facility.
  1. [83]
    I have endeavoured through these detailed reasons to demonstrate the logic in how I reached the ultimate conclusion in this matter. It is certainly not my intention to circumvent the law as stipulated by Parliament, nor do I believe that any of my fellow judges who have had to determine this vexed issue had that intention. To paraphrase the comments of Wyzanski J in New York, New Haven and Hartford Railroad Company v Henagan (1959) 272 F.2d 153, I hope I am a lawful judge, and I recognise the limits of my authority.[13]

Guidance for Magistrates

  1. [84]
    As I have made clear in the discussion of the cases, it is critical that there be certainty of sentencing in respect of the provisions. It is obvious that numerous offences contrary to s 754 PPRA are coming before the Magistrates Court, and also by way of transmission pursuant to s 651 Criminal Code to the District Court. Similarly numerous offences are coming before the courts in respect to offences under the Weapons Act 1990 although perhaps not to the same degree. In many cases such offences are part of a wider group of offending, and more serious offences have to be dealt with, and significant periods of imprisonment imposed. In those circumstances the minimum mandatory sentences of imprisonment are usually imposed concurrently with the sentences of imprisonment imposed on the more serious offences. However there will always be those cases where the evasion offence under the PPRA or a Weapons Act 1990 offence is the most serious charge before the court.
  1. [85]
    On the clear preponderance of authority in this Court, and in the absence of any contrary decision from the Court of Appeal, a sentencing court under s 754 PPRA has the following options:[14]
  1. (a)
    impose the mandatory minimum fine of 50 penalty units, or greater fine up to the maximum fine;
  1. (b)
    impose the mandatory minimum period of imprisonment of 50 days, or greater period up to the maximum term;
  1. (c)
    impose a period of probation;
  1. (d)
    impose a period of community service.
  1. [86]
    In respect of s 50(1)(d)(iii) and s 50(1)(d) and (e) Weapons Act 1990, a sentencing court has the following options:
  1. (a)
    the minimum mandatory sentence of imprisonment, or greater period up to the maximum term;
  1. (b)
    a period of probation;
  1. (c)
    a period of community service.
  1. [87]
    I will hear the parties on what orders should be made in consequence of this judgment. At the hearing of this matter I raised whether a case should be stated to the Court of Appeal pursuant to s 227 Justices Act 1886. I received further submissions from the parties. The appellant submitted that that would be inappropriate in the circumstances, as the appellant had an individual interest in the appeal confined to his particular circumstances, and should not be exposed to the cost of further proceedings. The respondent in its supplementary outline considered that as there is a divergence of judicial authority on this issue the matter should be referred to the Court of Appeal. I consider in the circumstances that it is not appropriate for a case to be stated; the respondent has its specific statutory right of appeal as referred to above.

APPENDIX A

The following sections exclude the operation of section 23 of the Criminal Code:

  • Trading (Allowable Hours) Act 1990 s 44 - Parties to offences
  • Trading (Allowable Hours) Act 1990 s 45 - Liability for offence committed by employee
  • Gaming Machine Act 1991 s 351(1) - Liability for offences by servants, agents or employees
  • State Transport (People Movers) Act 1989 s 37 - Liability for offence by body corporate
  • Safety in Recreational Water Activities Act 2011 s 25B - Exceptions
  • Liquor Act 1992 s 229 - Liability for certain offences against Act
  • Fire and Emergency Services Act 1990 s 73(1) - Liability of person for fire lit by agent or employee
  • Work Health and Safety Act 2011 s 34B - Exceptions

The following sections exclude the operation of section 24 of the Criminal Code:

  • Transport Operations (Road Use Management) Act 1995 s 79(12) - Vehicle offences involving liquor or other drugs
  • Drugs Misuse Act 1986 s 129 - Evidentiary provisions
  • Keno Act 1996 s 166(5) - Allowing minors to take part in keno gaming
  • Gaming Machine Act 1991 s 260(1) - Defence to charge if age material
  • Liquor Act 1992 s 230 - Defence to charge if age material

The following sections exclude the operation of both sections 23 and 24 of the Criminal Code:

  • Transport Operations (Marine Pollution) Act 1995 s 26(2) - Discharge of oil into coastal waters prohibited
  • Transport Operations (Marine Pollution) Act 1995 s 35(2) - Discharge of noxious liquid substances prohibited
  • Transport Operations (Marine Pollution) Act 1995 s 42 - Jettisoning of harmful substances into coastal waters prohibited
  • Transport Operations (Marine Pollution) Act 1995 s 47 - Discharge of untreated sewage into nil discharge waters for untreated sewage prohibited
  • Transport Operations (Marine Pollution) Act 1995 s 48A - Ship fixed with toilet operating in prescribed nil discharge waters to be able to hold or treat sewage
  • Transport Operations (Marine Pollution) Act 1995 s 50 - Discharge of sewage from declared ship into nil discharge waters for sewage prohibited
  • Transport Operations (Marine Pollution Act) 1995 s 50A - Discharge of sewage by prescribed ships
  • Transport Operations (Marine Pollution) Act 1995 s 55(2) - Disposal of garbage into coastal waters prohibited
  • Transport Operations (Marine Pollution) Act 1995 s 61(2) - Discharge of pollutant into coastal waters prohibited
  • Food Act 2006 s 45 - Disapplication of Criminal code, ss 23 and 24
  • Fair Trading Act 1989 s 97 - Proceedings for an offence against this Act
  • Electrical Safety Act 2002 s 40E - Duty prevails over particular excuses
  • Mining and Quarrying Safety and Health Act 1999 s 45 - Defences for div 2, 3 or 3A
  • Public Health (Infection Control for Personal Appearance Services) Act 2003 s 27 - Defences for div 1
  • Coal Mining Safety and Health Act 1999 s 48 - Defences for div 2, 4 or 3A
  • Petroleum and Gas (Production and Safety) Act 2004 s 732A(4) - Defences for certain offences
  • Work Health and Safety Act 2011 s 33A - Duty prevails over particular excuses

Footnotes

[1] Outline of appellant submissions, para 7.2.

[2] Police Powers and Responsibilities and Other Legislation Amendment Bill 2013.

[3] Judgment of learned magistrate, [10].

[4] Judgment of magistrate, [24].

[5] A principle of statutory construction in essence that when one or more things of a class are expressly mentioned things other than the same class are excluded.

[6] “General things or words do not derogate from special things or words”. A rule of statutory interpretation requiring specific provisions of a statute to prevail over general provisions in the same or an earlier statute where there is a conflict between the two: Encyclopaedic Australian Legal Dictionary.

[7] [2016] QDC 63 at [39].

[8] Burton, Crofts, Tarrant. Thompson Reuters 2011.

[9] (2005) 228 CLR 357 at 372 [30].

[10] Chapter III of the Constitution.

[11] In Davis v Johnson [1979] AC 264 Lord Diplock referred to Lord Denning’s efforts in the Court of Appeal in that case as “a one man crusade with the object of freeing the Court of Appeal from the shackles, which the doctrine of stare decisis imposed upon its liberty of decision by the application of the rule laid down in the Bristol Aeroplane case.”

[12] I am grateful to the Supreme Court Library for their assistance in compiling this list.

[13] The full quote as set out in the judgment of the United States Court of Appeals for the First Circuit is: “In my opinion there was no evidence whatsoever of negligence on the part of the engineer. I cannot read the record as a whole in a way to find any evidence of negligence. But I know that my method of reading the record is different from that of a majority of the Supreme Court of the United States as exhibited in past cases, and I hope I am a lawful judge, and I recognise the limits of my authority, whether appellate judges do or not.” Curiously His Honour’s view of the case was vindicated by a majority of the Supreme Court of the United States – see (1960) 364 US 441.

[14] Harrison DCJ in Forbes v Jingle at [29] considered that good behaviour bonds were options for this offence.

Close

Editorial Notes

  • Published Case Name:

    Broederlow v Commissioner of Police

  • Shortened Case Name:

    Broederlow v Commissioner of Police

  • MNC:

    [2019] QDC 228

  • Court:

    QDC

  • Judge(s):

    Chowdhury DCJ

  • Date:

    15 Nov 2019

Litigation History

EventCitation or FileDateNotes
Primary JudgmentMagistrates Court (No Citation)10 Apr 2019Respondent Mr Broederlow pleaded guilty to unlawful possession of a weapon in public contrary to s 50 of the Weapons Act 1990 (Qld).
Primary JudgmentMagistrates Court (No Citation)12 Apr 2019Respondent Mr Broederlow sentenced to one year's imprisonment served wholly within a corrective services facility (by application of s 50(1)(d)(iii) of the Weapons Act 1990 (Qld).
Primary Judgment[2019] QDC 22815 Nov 2019Mr Broederlow's appeal allowed; Magistrate erred in holding that probation was not a sentencing option: Chowdhury DCJ.
Appeal Determined (QCA)[2020] QCA 16110 Aug 2020Leave to appeal granted; appeal allowed; orders made 15 November 2019 set aside; warrant ordered for the arrest of the respondent Mr Broederlow to lie in the registry for seven days: Sofronoff P and Morrison and Mullins JJA.

Appeal Status

Appeal Determined (QCA)
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