The Queen v DS

In this matter, the Court was required to determine whether the “minimum penalty” prescribed by s 50B(1)(e) of the Weapons Act 1990 precluded the Court from imposing a sentence of probation, and instead required the Court to impose a sentence of two and half years’ of imprisonment, served wholly in actual custody, for an offence of unlawfully supplying a weapon without a reasonable excuse under s 50B of the Weapons Act 1990. This issue had attracted differing views in District and Supreme Court decisions. Justice Bowskill held that the effect of s 50B(1)(e) was to oust the discretion of the Court to impose any minimum penalty other than that prescribed in the legislation.

Bowskill J

22 November 2019

The defendant pleaded guilty to a number of charges, relevantly including unlawful supply of a category H weapon (being a short firearm) to a person with no reasonable excuse, contrary to s 50B of the Weapons Act 1990. [1]–[3]. The offences had come to light after the police searched the defendant’s home, after he had made a threat to the real estate agent acting for his landlord. [7]–[24]. No actual supply was proven but he pleaded guilty on the basis of a text message he had sent to a number of persons offering to sell such a firearm. [25]. The Weapons Act 1990 offence was characterised as “low level”. [25].

An issue concerning the proper construction of s 50B of the Weapons Act 1990 complicated the sentencing of the defendant. [31]. Under the terms of s 50B(1)(e), as amended in 2012, the offence had a “minimum penalty” of “2½ years imprisonment served wholly in a corrective services facility”. [33]–[36]. Pursuant to s 185B of the Corrective Services Act 2006 (which was also amended in 2012), “[t]he prisoner’s parole eligibility date [was] the day after the day on which the prisoner has served a term of imprisonment that [was] the minimum penalty for the offence”. [37]–[38].

Section 50B(1)(e) of the Weapons Act 1990 applied to the defendant. [39]. The issue was whether s 50B(1)(e) precluded imposition of a sentence other than imprisonment, such as probation, or instead dictated a minimum sentence only if imprisonment was imposed. [40].

Justice Bowskill observed that the language of s 50B(1) was “clear and unequivocal”. [52]. Relevantly, it identified a “minimum penalty” which, consistently with s 41 of the Acts Interpretation Act 1954, meant the offence was punishable by a penalty not less than that minimum. [55]. It was appropriate, in her Honour’s view, to have regard to the explanatory notes for the amending Act that inserted the “minimum penalty” into s 50B, “to inform part of the context in which the provision is to be construed” and to assist with determining “the purpose and policy of the provision”. [48]–[49], [56]–[57]. The “clear words” of s 50B, construed in this context, led “inexorably to the conclusion” that the offence was punishable by a penalty of not less than two and a half years’ imprisonment, served wholly in a corrective services facility, when the conditions in s 50B(1)(e) were satisfied. [58]–[59].

Justice Bowskill rejected the defendant’s submission that the minimum penalty applied only if the defendant was sentenced to imprisonment. [60]. In doing so, her Honour did not adopt District Court decisions that reflected this submission (R v Ham [2016] QDC 255; Broederlow v Commissioner of Police [2019] QDC 229; Campbell v Galea [2019] QDC 53), and instead favoured the construction adopted by Brown J in the unreported decision of R v Lewis. [61]–[74]. Justice Bowskill opined that:

“The provision must be construed according to the words used, having regard to the context, which includes the purpose and policy objective of the provision. The policy objective was, quite clearly, to impose a mandatory minimum punishment, in the form of a specified period of time in actual custody, to meet the objectives of community protection and deterrence. A construction of the ‘minimum penalty’ provisions of s 50B which avoids the operation of those provisions does not achieve the purpose of the legislation. It is not to the point to say that the provision is not ambiguous, therefore reference may not be made to extrinsic materials. Those extrinsic materials, in particular the explanatory notes, inform the purpose (policy objective) of the provision, and it is necessary and appropriate to have regard to them, as part of the context in which the provision is to be construed; and also to confirm what appears to be the ordinary meaning of the provision. What is not permissible is to rely upon extrinsic materials to alter the otherwise clear meaning of a statutory provision; but that is not the issue here.” [67].

Thus, where the circumstances in s 50B(1)(e) (or s 50B(1)(d) for that matter) were established, it was not open to a sentencing court to ignore the minimum penalty provision, and instead make an order for probation or community service. [72].

In the circumstances, there was no basis to impose a sentence greater than the minimum penalty for this offence, given it was “extremely harsh” in the circumstances and was “not the penalty [Bowskill J] would have imposed, if [her Honour] retained a discretion”. [75]. The minimum penalty necessitated adjustments to the sentences to be imposed in respect of the other charges, including a charge of drug trafficking. In respect of this offence, a head sentence of three years’ imprisonment to be served concurrently was imposed. [79]–[81]. Taking into account time already served, the effect of all this was that the defendant would serve only six months on parole, when a longer period on parole with less time in actual custody “would have been a preferable outcome”. [82].

Her Honour noted that the minimum penalty hampered the Court’s ability to balance the different purposes of a sentence and “reflect them in a just and appropriate penalty having regard to the particular circumstances of the case”. [82]. However, the Court “must obey the statute”. [82].

In the result, the defendant was sentenced to serve two and a half years in actual custody, with parole eligibility the day after this period of imprisonment had been served. [83].

S Walpole