Commissioner of Police v Broederlow

This case concerns the imposition of mandatory minimum sentences for unlawful possession of a weapon in public contrary to s 50 Weapons Act 1990. At issue was whether the minimum penalty proscribed in s 50(1)(d)(iii) that an offender is required to serve a period of one year’s imprisonment “wholly in a corrective services facility” precluded a sentence of probation. The Court held that it did. The Court also held that as the statute compelled the imposition of a mandatory minimum sentence there was no room for the exercise of a residual discretion to dismiss the appeal and not alter the sentence. Finally, the Court refused to allow the respondent’s submission that leave to appeal should be refused on the basis that sentences of probation for an offence against s 50(1)(d)(iii) have not previously been challenged. To do so, would ignore the clear language of the provision and that “is not the role of the Court”.

Sofronoff P and Morrison and Mullins JJA

10 August 2020

After being pulled over by police whilst driving his car, the respondent revealed that he was, at that time, in the possession of a gun, being a silver homemade single shot pistol. 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 Weapons Act 1990 (the Act). [2]. The respondent pleaded guilty. At sentencing, the Magistrate determined that he was required to impose a sentence of one year’s imprisonment served wholly in a corrective services facility in accordance with s 50(1)(d)(iii) of the Act. [3]–[4]. The District Court allowed the respondent’s appeal on the basis that the magistrate erred in finding that probation was not an available sentencing option. [5]. The penalties imposed for various other charges are not relevant to the point discussed here.

The Commissioner of Police appealed to the Court of Appeal pursuant to s 118(3) District Court of Queensland Act 1967. The sole issue on appeal was whether the learned District Court judge erred by finding that a period of probation was available in respect of the offence for unlawful possession of a weapon in public. [6].

Reasoning of the Court of Appeal

The applicant argued on appeal that the District Court erred in concluding that the terms of s 50(1)(b)(iii) did not exclude the discretion to impose a probation order. [21]–[22]. The Court of Appeal (Morrison JA with Sofronoff P and Mullins JA agreeing) agreed.

The Court identified that s 50 provides a “cascading sequence” of applicable penalties. [23]. Maximum penalties are set down for subsections (a)–(c) and minimum penalties are proscribed for sections (d)–(e). Accordingly, the Court held that “if the offence falls into the categories dealt with in subsections (d) and (e) then the offence attracts a mandatory minimum penalty”. [27].

The Court noted that while the period of imprisonment varied as a result of the “characteristics” of each of the three offences in s 50(1)(d), each penalty required the offender to serve a period of imprisonment “wholly in a corrective services facility”. The Court held that the penalty proscribed by s 50(1)(d) was “entirely unambiguous”. [28].

By reference to s 41 Acts Interpretation Act 1954, the Court noted that where the phrase “minimum penalty” is used, as in ss 50(1)(d) and 50(1)(e), it is “construed to mean that the offences are punishable by a penalty not less than the minimum”, which given the words used in the penalty itself was “not less than the period to be served wholly within a corrective services facility”. [19], [30], [31].

Finally, Morrison JA observed that:

“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. [34].

The residual discretion point

The Court refused to exercise the residual discretion to dismiss the appeal. After a detailed discussion of the relevant authorities, the Court noted that the residual discretion is “in fact a sentencing discretion which only arises if the appellate court would otherwise be called upon to resentence”. [39]. The Court noted that this was not the case here because “s 50(1)(d)(ii) provides no opportunity to exercise a discretion, but mandates the imposition of a minimum penalty”. Therefore, the “terms of the statute exclude any residual discretion”. [40].

Discretion on the grant of leave to appeal

The Court also rejected the respondent’s submission that it was not necessary to grant leave to appeal because, “given the lack of challenge to many prior sentences of this type it cannot be said that it is necessary to grant leave ‘to correct a substantial injustice to the applicant’ by returning the respondent to prison”. [44]. The Court held that the fact that previous sentences have not been challenged “does not establish a basis to deny a legitimate challenge when it is brought” as “[t]o do so would be to ask the Court to ignore the clear provisions of s 50(1)(d)(iii) of the Weapons Act, and thus frustrate the intention of the legislature”. [46].

A Hughes of Counsel