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Queensland Judgments
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  • Appeal Determined (QCA)

Commissioner of Police v Broederlow

 

[2020] QCA 161

SUPREME COURT OF QUEENSLAND

CITATION:

Commissioner of Police v Broederlow [2020] QCA 161

PARTIES:

COMMISSIONER OF POLICE

(applicant)

v

BROEDERLOW, Ethan Shane

(respondent)

FILE NO/S:

CA No 322 of 2019
DC No 1261 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Beenleigh – [2019] QDC 228 (Chowdhury DCJ)

DELIVERED ON:

10 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

20 May 2020

JUDGES:

Sofronoff P and Morrison and Mullins JJA

ORDERS:

  1. Leave to appeal granted.
  2. Allow the appeal.
  3. Set aside the orders made in the District Court on 15 November 2019.
  4. Order a warrant to issue for the arrest of the respondent, to lie in the registry for seven days.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the respondent was intercepted by police while driving a vehicle – where the respondent revealed that he had a gun in the vehicle and police discovered upon searching that the gun was a silver homemade single shot pistol – where the respondent did not have a weapons licence authorising him to possess such a firearm – where as a result he was charged with unlawful possession of a weapon in public, contrary to s 50 of the Weapons Act 1990 (Qld) – where a magistrate concluded that he was required to impose a mandatory minimum sentence of one years’ imprisonment served wholly in a corrective services facility – where this was because of the application of s 50(1)(d)(iii) of the Weapons Act – where the respondent’s appeal to the District Court was allowed and the District Court judge resentenced the respondent to a period of two years’ probation with a conviction recorded – where the Commissioner of Police seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – whether leave to appeal should be granted – whether the learned District Court judge erred by concluding that a period of probation was open in respect of the offence for unlawful possession of a weapon in public

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – POWERS OF APPELLATE COURT – GENERALLY – where the respondent contended that after determining the proper interpretation of s 50 of the Weapons Act the court should refuse leave to appeal or exercise the “residual discretion” to dismiss the appeal – where the respondent placed reliance upon the decision of the High Court in Green v The Queen for the proposition that there may be circumstances which will produce an injustice if a Crown appeal is allowed, even in a case in which the sentence is demonstrated to be erroneously lenient – whether s 50(1)(d)(iii) provides an opportunity for the court to exercise the residual discretion

Acts Interpretation Act 1954 (Qld), s 14A, s 14B, s 41
District Court of Queensland Act 1967 (Qld), s 3, s 4, s 50B, s 65, s 118
Penalties and Sentences Act 1992 (Qld), s 180A
Weapons Act 1990 (Qld), s 50

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, applied
Broederlow v Commissioner of Police [2019] QDC 228, cited
Broederlow v Commissioner of Police (No 2) [2019] QDC 241, cited
Commissioner of Police Service v Spencer [2014] 2 Qd R 23; [2013] QSC 202, distinguished
Director of Public Prosecutions v Karazisis (2010) 31 VR 634; [2010] VSCA 350, cited
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, applied
R v A2 (2019) 93 ALJR 1106; [2019] HCA 35, applied
R v DS [2019] QSC 288, followed
R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56; [2014] QCA 108, cited
Smith v Ash [2011] 2 Qd R 175; [2010] QCA 112, cited

COUNSEL:

N Rees for the applicant
B J Power, with L M Dollar, for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the applicant
Guest Lawyers for the respondent

  1. [1]
    SOFRONOFF P:  I agree with Morrison JA.
  2. [2]
    MORRISON JA:  On 22 December 2018 the respondent was intercepted by police while driving a vehicle.  He revealed that he had a gun in the vehicle and police discovered upon searching that the gun was a silver homemade single shot pistol.  The pistol had a bolt action and was designed to fire a .22 calibre bullet.  The respondent did not have a weapons licence authorising him to possess such a firearm.  As a result he was charged with unlawful possession of a weapon in public, contrary to s 50 of the Weapons Act 1990 (Qld).
  3. [3]
    The respondent pleaded guilty to that charge and 12 other charges, before a magistrate on 10 April 2019.  The sentencing was adjourned for two days to enable the magistrate to consider what sentence should be imposed under the Weapons Act.  The magistrate concluded that he was required to impose a mandatory minimum sentence of one year’s imprisonment served wholly in a corrective services facility.  This was because of the application of s 50(1)(d)(iii) of the Weapons Act.
  4. [4]
    Various penalties were imposed on the other 12 charges but none of them is presently relevant.  As well, because the respondent was subject to two suspended sentences imposed on 15 May 2018, those terms were activated, but suspended.
  5. [5]
    The respondent appealed against his sentence to the District Court, contending that the magistrate erred in finding that probation was not an available sentencing option in respect of the offence relating to unlawful possession of weapons.  That appeal was allowed and the District Court judge resentenced the respondent to a period of two years’ probation with a conviction recorded.  The District Court judge delivered two decisions, the first of which was on the question of whether s 50 of the Weapons Act mandated a sentence of not less than 12 months’ imprisonment to be served wholly within a corrective services facility, and the second consisted of the sentencing orders and reasons.[1]
  6. [6]
    The Commissioner of Police seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).  The sole issue before this Court is whether the learned District Court judge erred by concluding that a period of probation was open in respect of the offence for unlawful possession of a weapon in public.

The statutory provisions

  1. [7]
    The Weapons Act regulates the purchase, possession, use, carrying and sale of particular weapons.  The long title of the Act is: “An Act to consolidate and amend the laws regulating or prohibiting the purchase, possession, use, carrying and sale of certain weapons and articles and to provide for the prevention of the misuse of weapons and for related purposes”.
  2. [8]
    The principles and object of the Act are set out in s 3:

3Principles and object of Act

  1. (1)
    The principles underlying this Act are as follows-
  1. (a)
    weapon possession and use are subordinate to the need to ensure public and individual safety;
  1. (b)
    public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and carriage of weapons.
  1. (2)
    The object of this Act is to prevent the misuse of weapons.”
  1. [9]
    Section 4 of the Act deals with how the object of the Act is to be achieved:

4How object is to be achieved for firearms

The object of this Act is to be achieved for firearms by-

  1. (a)
    prohibiting the possession and use of all automatic and self-loading rifles and automatic and self-loading shotguns except in special circumstances; and
  1. (b)
    establishing an integrated licensing and registration scheme for all firearms; and
  1. (c)
    requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm; and
  1. (d)
    providing strict requirements that must be satisfied for-
  1. (i)
    licences authorising possession of firearms; and
  1. (ii)
    the acquisition and sale of firearms; and
  1. (e)
    ensuring that firearms are stored and carried in a safe and secure way.”
  1. [10]
    Part 2 of the Act deals with licensing in respect of weapons and Part 3 deals with the acquisition, sale or disposal of weapons.  Part 4 deals with the possession and use of weapons and includes s 50 in these terms:

50 Possession of weapons

  1. (1)
    A person must not unlawfully possess a weapon.

Maximum penalty-

  1. (a)
    if the person unlawfully possesses 10 or more weapons at least 5 of which are category D, E, H or R weapons – 13 years imprisonment; or
  1. (b)
    if paragraph (a) does not apply and the person unlawfully possesses 10 or more weapons – 500 penalty units or 10 years imprisonment; or
  1. (c)
    if paragraphs (a) and (b) do not apply-
  1. (i)
    for a category D, H or R weapon – 300 penalty units or 7 years imprisonment; or
  1. (ii)
    for a category C or E weapon – 200 penalty units or 4 years imprisonment; or
  1. (iii)
    for a category A, B or M weapon – 100 penalty units or 2 years imprisonment.

Minimum Penalty-

  1. (d)
    for an offence, committed by an adult, to which paragraph (a), (b), (c)(i) or (c)(ii) applies-
  1. (i)
    if the person unlawfully possesses a firearm and uses the firearm to commit an indictable offence – 18 months imprisonment served wholly in a corrective services facility; or
  1. (ii)
    if the person unlawfully possesses a firearm for the purpose of committing or facilitating the commission of an indictable offence – 1 year’s imprisonment served wholly in a corrective services facility; or
  1. (iii)
    if the person unlawfully possesses a short firearm in a public place without a reasonable excuse – 1 year’s imprisonment served wholly in a corrective services facility; or
  1. (e)
    for an offence, committed by an adult, to which paragraph (c)(iii) applies-
  1. (i)
    if the person unlawfully possesses a firearm and uses the firearm to commit an indictable offence – 9 months imprisonment served wholly in a corrective services facility; or
  1. (ii)
    if the person unlawfully possesses a firearm for the purpose of committing or facilitating the commission of an indictable offence – 6 months imprisonment served wholly in a corrective services facility.”
  1. [11]
    Similar provisions appear in s 50B relating to the unlawful supply of weapons, and in s 65 dealing with unlawful trafficking in weapons.  Otherwise there are no mandatory minimum penalties imposed under the Act.
  2. [12]
    The Acts Interpretation Act 1954 (Qld) provides guidance in respect of the interpretation of a statute, in s 14A(1):

“In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.”

  1. [13]
    When s 14A(1) of the Acts Interpretation Act uses the word “purpose”, that is defined as including “policy objective”: see schedule 1 to the Acts Interpretation Act.
  2. [14]
    Section 14B of the Acts Interpretation Act enables consideration to be given to extrinsic material capable of assisting in the interpretation of the provision of an Act, in the circumstances set out in s 14B(1).  Those circumstances include if the provision is ambiguous, in which case use of the extrinsic material is to provide an interpretation of it.  It also includes use of the extrinsic material to confirm the interpretation conveyed by the ordinary meaning in the provision.  The “ordinary meaning” means the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act: s 14B(3) of the Acts Interpretation Act.
  3. [15]
    When construing a statute the accepted approach is to ascertain the intended meaning of the words used, by having regard to the text of the statute in context.  So much appears from the statement in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:[2]

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself.  Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.  The language which has actually been employed in the text of legislation is the surest guide to legislative intention.  The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”

  1. [16]
    More recently the High Court reaffirmed that approach in R v A2:[3]

“Consideration of the context for the provision is undertaken at the first stage of the process of construction.  Context is to be understood in its widest sense.  It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole.  It extends to the mischief which it may be seen that the statute is intended to remedy.  “Mischief” is an old expression.  It may be understood to refer to a state of affairs which to date the law has not addressed.  It is in that sense a defect in the law which is now sought to be remedied.  The mischief may point most clearly to what it is that the statute seeks to achieve.”

  1. [17]
    Guidance as to how to identify the statutory purpose is given in the decision of Lacey v Attorney-General (Qld):[4]

“The application of the rules will properly involve the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials.  The purpose of a statute is not something which exists outside the statute.  It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.”

  1. [18]
    The mandatory minimum penalty provisions in s 50 were introduced at the same time as those for unlawful supply in s 50B and for unlawful trafficking in s 65.  That occurred in 2012 by the Weapons and Other Legislation Amendment Act.  The Explanatory Notes to the Bill which became the 2012 amendment Act include the following statement:[5]

Policy objectives and the reasons for them

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 1992 (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.

The mandatory penalties imposed by the Bill will apply to adults who unlawfully:

  • carry on the business of trafficking in weapons without a reasonable excuse, where at least one of the weapons is a firearm;
  • supply weapons without a reasonable excuse, where at least one of the weapons is a short firearm;
  • possess a firearm where the firearm is used in the commission of an indictable offence;
  • possess a firearm where the possession of the firearm is for the purpose of committing or facilitating an indictable offence; and
  • possess a short firearm in a public place without a reasonable excuse.

On 30 April 2012, the Premier announced the Government’s intention to introduce mandatory minimum penalties for weapons offences in an effort to address the unlawful use of firearms.  That announcement was made in the context of growing concern about criminal activity involving the use of firearms both in Queensland and nationally.

The possession and use of firearms by persons engaged in criminal activity poses a risk to community safety.  The Bill addresses that risk by ensuring that the penalties imposed meet the community expectations and provide adequate deterrence against such conduct.

Furthermore, where a person is convicted of an offence in circumstances attracting a mandatory period of imprisonment, any date for parole release or eligibility that is imposed under the PSA and any parole eligibility date under the CSA does not fall before the expiry of the applicable mandatory minimum term of imprisonment.

Achievement of policy objectives

The new penalty regime aims to reduce the current rate at which firearms are being unlawfully possessed and used by creating a greater deterrence through the imposition of mandatory periods of imprisonment.

The Bill removes the discretion of sentencing courts to partly or wholly suspend the mandatory minimum period required to be imposed.  The Bill will not however, alter the current operation of s 159A of the PSA with respect to the declaration of time spent in pre-sentence custody.

Similarly, the Bill amends the CSA to ensure that a person sentenced under the new regime will not be eligible for parole until the minimum sentence has been completed.  The Bill does not however, prevent the making of an exceptional circumstances parole order prior to the completion of a mandatory minimum period. …”

  1. [19]
    As explained in Lacey v Attorney-General (Qld)[6] the ascertainment of legislative intention must have regard to the rules of construction, common law and statutory rules, which are known to parliamentary drafters.  That necessarily includes s 41 of the Acts Interpretation Act, which provides:[7]

41 Penalty at end of provision

In an Act, a penalty specified at the end of-

  1. (a)
    a section (whether or not the section is divided into subsections); or
  1. (b)
    a subsection (but not at the end of a section); or
  1. (c)
    a section or subsection and expressed in such a way as to indicate that it applies only to part of the section or subsection;

indicates that an offence mentioned in the section, subsection or part is punishable on conviction (whether or not a conviction is recorded) or, if no offence is mentioned, a contravention of the section, subsection or part constitutes an offence against the provision that is punishable on conviction (whether or not a conviction is recorded)-

  1. (d)
    if a minimum as well as a maximum penalty is specified - by a penalty not less than the minimum and not more than the maximum; or
  1. (e)
    in any other case - by a penalty not more than the specified penalty.”
  1. [20]
    Those rules which aid the appropriate approach to construction in order to ascertain legislated intention also include the principle of legality.  That is conveniently expressed as “the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities”.[8]

Consideration

  1. [21]
    The contention advanced on behalf of the applicant is that the wording of s 50 is unambiguous, and that the learned District Court judge erred in concluding that its terms did not exclude the discretion to impose a probation order.  In that respect considerable reliance was placed upon the decision of Bowskill J in The Queen v DS.[9]  DS concerned the provisions of s 50B(1)(e) of the Weapons Act, but they are relevantly identical to those in question here.
  2. [22]
    In my view, the applicant’s contentions as to the construction of s 50 of the Weapons Act should be accepted.  There are a number of reasons for that conclusion.
  3. [23]
    Firstly, when one turns to the text of the provision it becomes clear that the offences to which the mandatory minimum penalty apply are a specific classification within the general offences of unlawful possession.  Subsections (a)-(c) provide a cascading sequence of applicable penalties.  The first is if 10 or more weapons are possessed, at least five of which are in particular categories.  In that event, the maximum penalty is 13 years’ imprisonment.  If that subparagraph does not apply, then (b) applies and deals with the situation of unlawful possession of 10 or more weapons without the component of at least five being in particular categories.  In that event the maximum penalty is 50 penalty units or 10 years’ imprisonment.  If neither (a) nor (b) apply, then subsection (c) is applicable, and applies decreasing penalties for different categories of weapon.
  4. [24]
    However, as the sequence progresses one comes to s 50(1)(d).  It picks out specific subdivisions of offences, identified specifically by their characteristics.  If the unlawful possession offences committed by an adult are offences to which subparagraphs (a), (b), (c)(i) or (c)(ii) apply, subsection (d) identifies three specific subdivisions.  If the person unlawfully possesses the firearm and uses it for an indictable offence, the minimum applicable penalty is 18 months’ imprisonment “served wholly in a corrective services facility”.  The next in the series is where the possession of a firearm is for the purpose of committing or facilitating the commission of an indictable offence, in which case the specified minimum is one year’s imprisonment “served wholly in a corrective services facility”.
  5. [25]
    The third in the sequence, and the one applicable in this case, is if the possession of the firearm is in a public place and without reasonable excuse.  In that event the minimum penalty specified is “one year’s imprisonment served wholly in a corrective services facility”.
  6. [26]
    A similar sequence is used in s 50(1)(e).
  7. [27]
    The sequence of providing only maximum penalties for subsections (a)-(c) and minimum penalties for subsections (d)-(e), identifies those in subsections (d) and (e) as a separate subdivision of penalties depending upon the nature of the offence.  Thus s 50(1) should be understood as meaning that if the offence of unlawful possession is committed then a maximum penalty will apply under subsections (a)-(c), but notwithstanding that, if the offence falls into the categories dealt with in subsections (d) and (e) then the offence attracts a mandatory minimum penalty.
  8. [28]
    Secondly, the way in which the provision specifies the penalty is, in my view, entirely unambiguous.  It requires the period of imprisonment to be served “wholly in a corrective services facility”.  Those very clear words exclude serving a penalty outside a corrective services facility.  A probation order is just such a penalty.
  9. [29]
    Thirdly, ss 50(1)(a)-(c) all provide for a maximum penalty depending on the circumstances.  Properly construed in accordance with s 41 of the Acts Interpretation Act, that is taken to mean that the offence is punishable by a penalty not more than the maximum.  That conclusion is supported by s 180A of the Penalties and Sentences Act 1992 (Qld) which applies to “maximum penalty” provisions, and specifies that the maximum penalty may be a fine or imprisonment.
  10. [30]
    Equally, the application of s 41 of the Acts Interpretation Act is that where the phrase “minimum penalty” is used in ss 50(1)(d) and (e), that is construed to mean that the offences are punishable by a penalty not less than the minimum.  Given the words used in the penalty itself, that can only refer to a penalty that is not less than the period to be served wholly within a corrective services facility.
  11. [31]
    Fourthly, the context in which ss 50(1)(d) and (e) are found can be determined by reference, in part, to the extrinsic material.[10]  The purpose or policy objective of ss 50(1)(d) and (e) could not be more clearly expressed than it is in the Explanatory Notes.  The legislature’s approach was to address the “growing concern about criminal activity involving the use of firearms”, and the provisions were to address that risk “by ensuring that the penalties imposed meet community expectations and provide adequate deterrence against such conduct”.  Each of those objectives was to occur by “creating a greater deterrence through the imposition of mandatory periods of imprisonment” in order to deter the use of firearms by persons in the four specific subdivisions.  They are where the weapons are used to commit an offence, or after the purpose of committing or facilitating such an offence, and where the weapon is possessed in a public place without reasonable excuse.  As to that specific subcategory of offences, the legislature announced its approach in that the provisions remove “the discretion of sentencing courts to partly or wholly suspend the mandatory minimum period required to be imposed”, and “ensure that a person sentenced under the new regime will not be eligible for parole until the minimum sentence has been completed”.
  12. [32]
    The respondent contended that the decision of Henry J in Commissioner of Police Service v Spencer[11] should be adopted.  In that case consideration was given to s 754 of the Police Powers and Responsibilities Act 2000 (Qld) which provided for the offence of failing to stop a motor vehicle.  It relevantly provided:

754 Offence for driver of motor vehicle to fail to stop motor vehicle

  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.
  1. (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.

Maximum penalty – 200 penalty units or 3 years imprisonment.

  1. (3)
    If a court convicts a person of an offence against subsection (2), the court, in addition to imposing a penalty, must disqualify the person from holding or obtaining a Queensland driver licence for 2 years.”
  1. [33]
    Henry J said of the construction of s 754(2) that:[12]

“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. [34]
    In my view, the respondent’s contention must be rejected.  It is true to say that the provision in that case involved the specification of a minimum penalty and a maximum penalty.  However, the wording of s 754 is well removed from that in ss 50(1)(d) and (e).  One need only note the use of the words for setting the minimum penalty in the Weapons Act, namely that the period of imprisonment must be “served wholly in a corrective services facility”.  Those words, in my view, exclude consideration of a sentence which is not served wholly in a corrective services facility.

The residual discretion point

  1. [35]
    The respondent contended that after determining the proper interpretation of s 50 of the Weapons Act the court should refuse leave to appeal or exercise the “residual discretion” to dismiss the appeal, and thereby not alter the sentence imposed.  Properly understood, this submission was directed to the contingency that this Court might hold the correct interpretation of s 50(1)(d)(iii) of the Weapons Act to require the imposition of one year’s imprisonment to be served wholly in a corrective services facility.
  2. [36]
    The respondent placed reliance upon the decision of the High Court in Green v The Queen[13] for the proposition that there may be circumstances which will produce an injustice if a Crown appeal is allowed, even in a case in which the sentence is demonstrated to be erroneously lenient.  That is where the “residual discretion” is derived from.  In Green v The Queen it was said:[14]

“Other circumstances may combine to produce injustice if a Crown appeal is allowed.  They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent’s rehabilitation.  They are relevant to the exercise of the residual discretion.  The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.”

  1. [37]
    In R v Hopper; Ex parte Attorney-General (Qld)[15] Fraser JA referred to the exercise of the residual discretion not to interfere with a sentence where the effect would be to return to custody a person who was granted liberty at first instance.  His Honour said:[16]

Should the Court exercise the residual discretion not to interfere?

[37] In DPP (Cth) v Gregory the Victorian Court of Appeal referred to the residual discretion to decline to return to custody a person who was granted liberty at first instance:

“This Court has always been hesitant to return to custody someone who has already been granted their liberty. That hesitation is founded upon a number of principles. Amongst other things, returning an offender to custody can damage public confidence in the justice system, and interrupts the process of rehabilitation and reintegration an offender will have begun upon their release. It places such an offender in the period between their release and the hearing and disposition of the Crown’s appeal in a state of limbo and uncertainty which is, generally speaking, and except in unusual or egregious cases, inimical to the proper administration of justice, and which is also inimical to their successful re-integration into the community.”

[38] This Court made similar observations in R v Major; Ex parte Attorney-General.

[39] That the Court retains a residual discretion of that character was confirmed by the High Court in Munda v Western Australia, in which the majority cited with apparent approval the reference by French CJ, Crennan and Kiefel JJ in Green v The Queen to circumstances which might create injustice if a State appeal against sentence is allowed as including “delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent’s rehabilitation.”

  1. [38]
    In Director of Public Prosecutions v Karazisis[17] the Victorian Court of Appeal referred to the residual discretion in these terms:[18]

“[100] That residual discretion is perhaps of uncertain width. It is impossible to lay down any exhaustive statement of its scope, or to be unduly prescriptive as to how it should be exercised in any given case. What is clear is that it survives the enactment of the new provisions. In the exercise of that discretion, the court can dismiss a Crown appeal even where a sentence fixed below is shown to be affected by error in the House sense, and the court is satisfied as well that a different sentence ought to have been passed.

[102] The new provisions also make it clear that the residual discretion to dismiss a Crown appeal can no longer be exercised on the basis that, if the court were to proceed to resentencing, it would in any event arrive at a sentence close to that imposed at first instance because the court would necessarily be giving a “discount” for double jeopardy.

[103] However, as one learned commentator has pointed out, there remain many reasons, apart from double jeopardy, why, as a matter of discretion, this court would conclude that, despite error having been established and being satisfied that a different sentence ought to have been passed, the Crown appeal should be dismissed.

[104] Among the factors that might be relevant to the exercise of the court’s discretion to dismiss an appeal, despite inadequacy of sentence having been demonstrated, are delay, parity, the totality principle, rehabilitation, and fault on the part of the Crown.

[105] It is not difficult to see how factors such as these, and perhaps a number of others, might be regarded as justifying such a course in any given case. …”

  1. [39]
    What is clear from the authorities is that the residual discretion, referred to by cases such as Green and Karazisis, is a discretion which arises in the event that the Court determines on a Crown appeal that a sentence imposed is inadequate for some reason.  In that event the appellate court would have to resentence the offender unless, for the sort of reasons identified in Green, Karazisis and Hopper, the court should refrain from doing so in the exercise of its residual discretion.  Thus understood, the residual discretion is in fact a sentencing discretion, which only arises if the appellate court would otherwise be called upon to resentence.
  2. [40]
    That is not the case here because s 50(1)(d)(iii) provides no opportunity to exercise a discretion, but mandates the imposition of the minimum penalty.  Thus, if this Court reached the conclusion, as I have, that s 50(1)(d)(iii) was unambiguous in its terms and compelled the imposition of that minimum penalty, the terms of the statute exclude any residual discretion.
  3. [41]
    None of the cases referred to by the respondent on the question of residual discretion were cases where the statute compelled the imposition of a mandatory minimum sentence.  In my view, where that is the case, rare though it might be, there is no room for the exercise of a residual discretion.
  4. [42]
    That conclusion highlights the unsatisfactory nature, from a sentencing discretion point of view, of statutes which impose mandatory minimum sentences.  Effectively it means that an offender is subject to that mandatory minimum no matter what the circumstances of the offending and no matter how compelling the mitigating factors might be.  This case is an example of that.  The evidence adduced shows the respondent’s positive performance whilst on probation since his release from custody.  Whatever the merits of that mitigating factor, s 50(1)(d)(iii) prevents the Court from giving appropriate recognition to it.

Discretion on the grant of leave to appeal

  1. [43]
    The respondent also contended that the requirements for the grant of leave to appeal under s 118(3) of the District Court of Queensland Act means that this Court should not allow the appeal even if the question of statutory construction was resolved against the respondent.  In this respect the respondent relied upon what was said in Smith v Ash:[19]

“In ACI Operations Pty Ltd v Bawden McPherson JA said that the criteria in the previous form of s 118 of the District Court of Queensland Act 1967 of an important point of law or question of general or public importance “remains a sufficient, but not a necessary, prerequisite to a grant of leave to appeal” under the present enactment.  In other cases it has been said that leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.  It is to be emphasised though that, whilst the Court exercises the discretion on a principled basis and those tests provide very useful guidance, s 118(3) confers a general discretion on this Court to grant or refuse leave to appeal which is exercisable according to the nature of the case.”

  1. [44]
    The contention advanced was that there were a number of instances where offenders against the provisions of the Weapons Act had been sentenced to probation and no appeal was sought to be brought by the Crown.  Thus, it was, the Crown had effectively stood by while sentences were imposed which were contrary to the provisions of the Weapons Act.  Further, reference was made to an instance of a Crown Prosecutor’s submissions referring to “the current prevailing view” on s 50 of the Weapons Act, that it did not exclude the effect of s 91, Probation or s 101, Community Service in the Penalties and Sentences Act.[20]
  2. [45]
    The ultimate contention was that “[g]iven the lack of challenge to many prior sentences of this type, it cannot be said that it is necessary to grant leave in the present case “to correct a substantial injustice to the applicant” by returning the respondent to prison.[21]
  3. [46]
    In my view, that submission cannot be accepted.  That previous prosecutors have not sought to challenge sentences imposed that did not comply with s 50 of the Weapons Act does not establish a basis to deny a legitimate challenge when it is brought.  To do so would be to ask this Court to ignore the clear provisions of s 50(1)(d)(iii) of the Weapons Act, and thus frustrate the intention of the legislature.  That is not the role of this Court.
  4. [47]
    Whilst the respondent may feel aggrieved that his case is the first to be brought to this Court, that is the Crown’s right and it is not for this Court to refuse to impose a penalty if the statutory provisions compel that course.

Conclusion

  1. [48]
    For the reasons expressed above I would allow the appeal and set aside the orders made in the District Court on 15 November 2019.  The orders I propose are:
  1. Leave to appeal granted.
  2. Allow the appeal.
  3. Set aside the orders made in the District Court on 15 November 2019.
  4. Order a warrant to issue for the arrest of the respondent, to lie in the registry for seven days.
  1. [49]
    MULLINS JA:  I agree with Morrison JA.

Footnotes

[1]Broederlow v Commissioner of Police [2019] QDC 228, and Broederlow v Commissioner of Police (No 2) [2019] QDC 241.

[2](2009) 239 CLR 27 at [47]; internal references omitted.

[3][2019] HCA 35 at [33], per Kiefel CJ and Keane J; internal references omitted.

[4](2011) 242 CLR 573; [2011] HCA 10 at [44].

[5]Emphasis added.

[6](2011) 242 CLR 573; [2011] HCA 10 at [43]-[44].

[7]Emphasis added.

[8]Lacey v Attorney-General (Qld) at [43]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384; and Coco v The Queen (1994) 179 CLR 427 at 437.

[9][2019] QSC 288.

[10]R v A2 at [33].

[11][2014] 2 Qd R 23; [2013] QSC 202.

[12]Spencer at [18].

[13]Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [43].  See also R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56; [2014] QCA 108 at [39], [66]; and R v Palmer; Ex parte Attorney-General (Qld) [2019] QCA 133 at [31].

[14]Green at [43].

[15][2015] 2 Qd R 56; [2014] QCA 108.

[16]Hopper at [37]-[39]; internal citations omitted.

[17](2010) 31 VR 634; [2010] VSCA 350.

[18]Karazisis at [100]-[105]; internal citations omitted.

[19][2011] 2 Qd R 175; [2010] QCA 112 at [50].

[20]This was a reference to the Appeal Record Book in R v Schaefer CA No 337/2019.  That appeal, which was to be heard with that of the respondent, did not proceed as Mr Schaefer died prior to the hearing.

[21]Outline on appeal, para 44.

Close

Editorial Notes

  • Published Case Name:

    Commissioner of Police v Broederlow

  • Shortened Case Name:

    Commissioner of Police v Broederlow

  • MNC:

    [2020] QCA 161

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Mullins JA

  • Date:

    10 Aug 2020

  • Selected for Reporting:

    Editor's Note

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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