Commissioner of Police v Broederlow [2019] QMC 2

MAGISTRATES COURT OF QUEENSLAND CITATION: Police v Broederlow [2019] QMC 2 PARTIES: COMMISSIONER OF THE QUEENSLAND POLICE SERVICE v BROEDERLOW, Ethan Shane (defendant) FILE NO/S: BEEN MAG – 2230/19 DIVISION: Magistrates Courts PROCEEDING: Sentence hearing ORIGINATING COURT: Magistrates Court Beenleigh DELIVERED ON: 12 April, 2019 DELIVERED AT: Beenleigh HEARING DATE: 9 April and 12 April, 2019 MAGISTRATE: Magistrate D MacKenzie ORDER: The only sentencing outcome available to this court following the defendant’s conviction for the offence of possessing a short firearm in a public place pursuant to Section 50(1)(d)(iii) of the Weapons Act is 1 year’s imprisonment served wholly in a corrective services facility CATCHWORDS: CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – MANDATORY SENTENCING PROVISIONS – where the defendant pleaded guilty to the offence of possessing a short firearm in a public place pursuant to Section 50(1) (d) (iii) of the Weapons Act – where the defendant submitted that probation was an alternative sentencing option in lieu of 1 year’s imprisonment served wholly in a corrective services facility. Section 50(1)(d)(iii) Weapons Act 1990 (Qld) Section 91 & Section 101 Penalty and Sentences Act 1992 (Qld) Commissioner of Police Service v Spencer [2013] QSC 202 (13/0003) Henry, J Forbes v Jingle [2014] QDC 204 (14/0041) Harrison DCJ -- 1 of 15 -- 2 Cronin v Commissioner of Police Service [2016] QDC 63 (15/95) Horneman-Wren SC, DCJ Sbrezni v Commissioner of Police Service [2016] QDC 18 (15/D18) Robertson, DCJ Skinner v Commissioner of Police Service [2016] QDC 138 (16/42) Kent QC, DCJ R v Ham and Anor [2016] QDC 255 (16/422) Chowdhury DCJ R v Peter Anthony Lewis (Unreported Supreme Court, Brisbane, Indictment No. 377 of 2016; 9 March, 2016 Powley v Queensland Police Service [2017] QDC 152 (193/16) Kent QC DCJ COUNSEL: A.Guest, (sol) for the applicant P. Cavanagh for the prosecution SOLICITORS: Guest Lawyers for the applicant Queensland Police Service Prosecutions [1] The defendant has pleaded guilty to the following thirteen offences in this court (in short form): 1 x Enter premises & commit an indictable offence 3 x Disqualified Driving 2 x Possession of a Dangerous Drug 1 x Possess Utensils 2 x Drive Unregistered Vehicle 2 x Drive Uninsured Vehicle 1 x Possess Explosives 1 x Possession of a Short Firearm in a public place [2] The offending ranged from 10 May, 2018 to 22 December, 2018, when the defendant was remanded in custody for the last 112 days. His is pleas of guilty to all but one of the above charges generate a breach of two suspended sentences of two and six months respectively imposed in the Magistrates Court at Beenleigh on 15 May, 2018. Approximately half of the offences were committed during the currency of a probation order of two years duration, imposed on 29 July, 2019. There are no breach of probation proceedings. The factual bases of these offences are contained in Exhibit 1, a sentencing factual schedule, about which there has been no dispute. -- 2 of 15 -- 3 [3] The defendant’s submission relates only to the possession of a short firearm in a public place offence pursuant to Section 50(1)(d)(iii) Weapons Act 1990 (Qld) (“Section 50(1)(d)(iii)”) which relevantly provides:- (1) A person must not unlawfully possess a weapon. Penalty— Maximum penalty— (c) if paragraphs (a) and (b) do not apply— (i) for a category D, H or R weapon—300 penalty units or 7 years imprisonment; Penalty— Minimum penalty— (d) for an offence, committed by an adult, to which paragraph (a), (b), (c)(i) or (c)(ii) applies— (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 (1A) For the purpose of subsection (1), penalty, paragraph (d) (iii), but without limiting that provision, it is a reasonable excuse to unlawfully possess the short firearm in the public place if— (a) a licence was in force within the 12 months immediately before the day the person committed the offence but is no longer in force at the time of the offence; and (b) the person would have been authorised under this Act to possess the short firearm in the public place at the time of the offence if the licence was still in force at that time; and (c) it was not a reason for the licence being no longer in force that the licence had been surrendered, suspended or revoked under this Act. (1B) It is not a reasonable excuse for subsection (1) , penalty, paragraph (d) (iii) to unlawfully possess the short firearm in the public place for the purpose of self- defence. (3) In this section— "public place" includes any vehicle that is in or on a public place. [4] The defendant’s submission is straight-forward. Put simply, probation could be imposed as a penalty under Section 50(1(d)(iii) because the offence was punishable by imprisonment and s. 91 of the Penalties and Sentences Act (Qld) (“PSA”) provides that probation may be ordered if ‘a court convicts an offender of an offence punishable by imprisonment.’ Parliament did not amend the relevant Section 50(1)(d)(iii) legislation to exclude the operation of Section 91 of the PSA on the introduction of the Weapons and Other Legislation Amendment Act 2012 -- 3 of 15 -- 4 which created this Section 50(1)(d)(iii) (“Section 50(1)(d)(iii)”) arguably a “mandatory penalty”. [5] The prosecution, in reply, submits that the plain English and legislative intention behind Section 50(1)(d)(iii) clearly provides for a mandatory minimum penalty. I do not accept the prosecution argument that the “without a reasonable excuse” clause provides a protection against potential unfairness associated with mandatory sentences. The examples of a reasonable excuse limit the excuses to inadvertent failures to renew existing licences and the like. [6] The defendant relies on a number of authorities which deal with a similar argument in relation to Section 754 of the Police Powers and Responsibilities Act 2000 (Qld) (“Section 754”) but primarily on the decision of R v Ham and Anor [2016] QDC 255 (16/422) (Chowdhury DCJ) which dealt with the analogous Section 50B of the Weapons Act (Qld). The Section 754 authorities have their genesis in a judicial review of a magistrate’s decision in the Supreme Court in Commissioner of Police Service v Magistrate Spencer and Ors [2013] QSC 202 (“Spencer’s Case”). Henry J held, with respect to Section 754, which then contained the minimum penalty provision of a 50 penalty unit fine, that probation could be imposed as a penalty under s. 754 because the offence was punishable by imprisonment and s. 91 of the PSA provides that probation may be ordered if ‘a court convicts an offender of an offence punishable by imprisonment.’1 1[2013] QSC 202 at [15] and [16] -- 4 of 15 -- 5 [7] Henry, J held:- “[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. (Footnote: 6 Acts Interpretation Act 1954 s 41). 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.” [8] Following Spencer’s Case, Section 754 penalty was amended by the Criminal Law (Criminal Organisations Disruptions) Amendment Act 2013, in force as of 17 October, 2013 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.” [9] Interestingly, the Explanatory Memorandum to the Criminal Law (Criminal Organisations Disruptions) Amendment Act Bill which introduced this amendment is not silent in relation to the unavailability of probation and community service as sentencing options pursuant to Section 754:- “Increase the mandatory minimum penalty for the offence in section 754 (an offence for driver of motor vehicle to fail to stop motor vehicle) to 50 penalty units or 50 days imprisonment to be served wholly in a correctional services facility or, for an offender who is a participant in a criminal organisation, 100 penalty units or 100 days imprisonment to be served wholly in a corrective services facility.” (at page 4) And later (at page 27): “Clause 64 amends Section 754 to specify the mandatory minimum penalty when a driver fails to stop a motor vehicle when directed to do so by a police officer. The mandatory minimum penalty is 50 penalty units or 50 days imprisonment wholly served in a correctional facility and a two year driver licence disqualification. The mandatory minimum penalty for participants in criminal organisations will be 100 penalty units or 100 days imprisonment wholly served in a correctional facility and a two year driver licence disqualification. The clause requires the minimum imposition of either the minimum fine or minimum sentence of imprisonment and excludes other sentencing options, for example, a good behaviour order, probation or a suspended sentence.” (my emphasis) -- 5 of 15 -- 6 [10] This Bill was hastily prepared and substituted the “Police Powers and Responsibilities and Other Legislation Amendment Bill of 2013” following a well- publicised public affray at Broadbeach. The Explanatory Memorandum to that earlier Bill said, in proposing an identical amendment (inter alia): “Clause 39 amends section 754 of PPRA to provide that the only alternate minimum penalty that a court can impose instead of 50 penalty units is 50 days imprisonment, to be served wholly in a correctional services facility. 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. Furthermore, the amendments also expressly overrides (sic) the discretion of the court under section 160B of the Penalties and Sentences Act 1992 to order the release of a person on parole earlier than the minimum period of 50 days if the person is sentenced to a period of imprisonment. Whilst the amendment may be seen as potentially interfering with the rights and liberties of individuals it is justified and proportionate when considered against the background of the harm caused by those who evade police. The amendment supports the government’s commitment of ensuring that penalties for offenders that evade police are commensurate with the risk posed to the community.” (my emphasis) [11] Harrison, DCJ in Forbes v Jingle [2014] QDC 204 (14/0041), held that this amendment effectively caused no change to the position in Spencer’s Case: “Decision [24] In Commissioner of Police Service (Qld) v Magistrate Spencer & 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 2 years' means the offender is liable to— (a) a maximum fine of 100 penalty units; or (b) maximum imprisonment of 2 years; or (c) a maximum fine of 100 penalty units and also maximum imprisonment of 2 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 section 92(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 -- 6 of 15 -- 7 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) (Footnote 4: at paragraph [17]) 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.” [12] Subsequent judgements involving Section 7542, have followed this reasoning that there is a threefold basis for finding that probation and community service are available sentences options to the “apparently” mandatory provisions of Section 754. First, the legislation does not exclude the operation of Sections 91 and 101 of the PSA. Second, Sections 41 and 41A of the Acts Interpretation Act 1954 (Qld) states 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 these maximum (3 years imprisonment) and minimum (a fine of 50 penalty units) penalties. Third, there is no need for recourse to extrinsic material pursuant to Section 14B of the Acts Interpretation Act 1954 (Qld) because there is no ambiguity in the legislation. [13] Primarily, the defendant relies upon R v Ham and Anor [2016] QDC 255 (16/422) (Chowdhury DCJ) which applied the above judgements in the consideration of the penalty in Section 50B(1)(e) of the Weapons Act (Unlawful Supply of a Short Firearm). The provision is almost identical to the subject Section 50(1)(d)(iii) penalty although the “mandatory” minimum sentence was 30 months. There, the court held: 2See Cronin v Commissioner of Police Service [2016] QDC 63 (15/95) Horneman-Wren SC, DCJ; Sbrezni v Commissioner of Police Service [2016] QDC 18 (15/D18) Robertson, DCJ; Skinner v Commissioner of Police Service [2016] QDC 138 (16/42) Kent QC, DCJ. and Powley v Queensland Police Service [2017] QDC 152 (193/16) Kent QC DCJ. It is to be noted that concessions were made in Cronin, Sbrezni and Powley by the prosecution so that these issues were not argued. -- 7 of 15 -- 8 “[15] In my view there is no ambiguity in the terms of the section. (viz s50b Weapons Act – essentially the same as s50 Weapons Act) 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 did 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.” [14] Clearly, the court in R v Ham and Anor was relying on the above first and third limbs as it would be impossible to argue the second limb as there was no alternative fine option as with Section 754. [15] The Explanatory Memorandum to the Weapons and Other Legislation Amendment Bill [2012] which introduced the amending Weapons and Other Legislation Amendment Act [2012] is silent regarding the specific exclusion of probation and community service as sentencing alternatives to the penalty provisions in Sections 50(1)(d)(iii) and 50B(1)(e). However, in the “Policy objectives”3, the explanatory notes state:- “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 (s50), unlawful supply (s50B) and unlawful trafficking (s 65) of weapons are committed in certain circumstances.”(my emphasis) [16] More recently, two decisions have called into question the line of authority since Spencer’s Case in relation to section 754 penalties: Doig v The Commissioner of Police [2016] QDC 320 (1587/16) (Devereaux SC DCJ) (“Doig”) and R v Peter Anthony Lewis (Unreported Supreme Court, Brisbane, Indictment No. 377 of 2016; 9 March, 2016. [17] In Doig, Judge Devereaux has seemingly dismissed the first limb4 (that probation and community service were always available as sentencing options where a term of imprisonment is the penalty) with little discussion. He dealt with, in more detail, the second limb “hierarchy of sentences argument” involving Section 41 and 41A Acts Interpretation Act and Section 180A PSA. He said: 3 See The Explanatory Memorandum to the Weapons Act and Other Legislation Amendment Bill [2012] page 1 4 See paragraph [12] supra -- 8 of 15 -- 9 “[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 be not whether, in the abstract or in a 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.” [18] Later, Judge Devereaux drew on the definitions of “penalty” and “sentence” to conclude that the only sentences available in Section 754 were either imprisonment or a fine because that was the order required to be made by the Act: “[48] The term ‘penalty’ bears a natural meaning - a punishment imposed for a breach. ‘Penalty’ is defined inclusively 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 – (a) Means a penalty or 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) ……”(my emphasis) [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.” [19] Obviously, the Doig Section 754 decision deals primarily with the second limb which is not be applicable to Section 50 (1)(d)(iii) which does not have a fine as an alternative. One view of his strict interpretation of the definition of “sentence” in Section 4 of Penalties and Sentences Act (Qld) is that “or another order made” confines a court to the strictures of that penalty. Accordingly, that would exclude Probation and Community Service. -- 9 of 15 -- 10 [20] In imposing a sentence5 on Peter Anthony Lewis (“R v Lewis”), Justice Brown, too, dismissed a submission that a mandatory term of imprisonment was not commanded by an analogous Section 50B(1)(e) of the Weapons Act (Unlawful Supply of a Short Firearm). She considered the wording of the section to be clear that it could not operate in conjunction with Section 91 of the penalties and Sentences Act (Qld). This is really a simple rejection of the first limb: “My job is to apply the law and not to circumvent what parliament has decided. With all due respect to 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 provisions for a minimum penalty of two and a half years imprisonment serve 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 imprisonment, notwithstanding that I note the terms of the maximum penalty that is provided for in Section 50B(1)(c)(i).”6 5 R v Peter Anthony Lewis (Unreported Supreme Court, Brisbane, Indictment No. 377 of 2016; 9/3/16) 6 Sentencing Remarks Brown J ibid (page 5of 8) -- 10 of 15 -- 11 DISPOSITION [21] Are probation and community service available sentencing options following a conviction for unlawful possession of a short firearm in a public place pursuant to Section 50 (1)(d)(iii) of the Weapons Act? In my view this is a simple question of statutory interpretation. [22] In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)7 in which Hayne, Heydon, Crennan and Kiefel JJ said: “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.” [23] Professors DC Pearce and RS Geddes in the seminal Australian textbook on statutory interpretation proffer a more holistic approach:8 Legislation is, at its heart, an instrument of communication. For this reason, many of the so-called rules or principles of interpretation are no more than common-sense and grammatical aids that are applicable to any document by which one person endeavours to convey a message to another. Any inquiry into the meaning of an Act should therefore start with the question: 'What message is the legislature trying to convey in this communication?' [24] Justice Michael Kirby, in a 2011 scholarly review of modern statutory interpretation, proffered a three stage process of statutory interpretation traversing from the old literal rule, through the purposive test, to a wider appreciation of statutory context.9 First, that 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.10 Second, the overall objective of statutory construction is to give effect to the purpose of Parliament as expressed in the text of the statutory provisions.11 Last, in deriving meaning from the text, so as to fulfil the purpose of Parliament, it is a mistake to consider statutory 7 (2009) 239 CLR 27, [47] 8 DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8 th ed, 2014) 146. 9 Kirby, Michael --- "Statutory Interpretation: The Meaning of Meaning" [2011] MelbULawRw 3; (2011) 35(1) Melbourne University Law Review 113 see also P Herzfeld & T Prince, Statutory Interpretation Principles (Thomson Reuters,2014) p21 10 Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2003] HCA 59; (2003) 216 CLR 1, 10 n 35 (Gleeson CJ, McHugh, Gummow and Hayne JJ). 11 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ). -- 11 of 15 -- 12 words in isolation. The proper approach demands the derivation of the meaning of words from the legislative context in which those words appear. 12 The task requires a combined exercise involving analysis of the text, context and purpose (or policy) of the statute in question. [25] Sections 14 and 14A of the Acts Interpretation Act 1954 (Qld) generally support this approach. They prescribe an interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation and that consideration may be given to extrinsic material capable of assisting in the interpretation— “(a) if the provision is ambiguous or obscure—to provide an interpretation of it; … or (b) in any other case—to confirm the interpretation conveyed by the ordinary meaning of the provision.” [26] In my view 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. [27] If it was necessary to refer to extrinsic material pursuant to Section 14A of the Acts Interpretation Act 1954 (Qld) then the “Policy Objectives”13 on page one of the Explanatory Memorandum to the Weapons and Other Legislation Amendment Bill [2012] is enlightening: “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 (s50), unlawful supply (s50B) and unlawful trafficking (s 65) of weapons are committed in certain circumstances.” (my emphasis) [28] I appreciate that there is tension between this approach and those authorities which require that any ambiguity in legislation affecting the liberty of the person will usually be construed in favour of the person whose liberty is affected.14 This is particularly so where a mandatory or fixed penalty is prescribed.15 I also note the 12 SGH Ltd v Federal Commissioner of Taxation [2002] HCA 18; (2002) 210 CLR 51, 91 [88] (Kirby J). 13 See The Explanatory Memorandum to the Weapons and Other Legislation Amendment Bill [2012] page 1 14 See Scott v Cawsey (1907) 5 CLR 132 at 154-5 (Issacs J); Ex parte Fitzgerald; Re Gordon (1945)45 SR (NSW); Williams v The Queen (1986) 161 CLR 278 (Mason and Brennan, JJ at 297) and Uittenbosch v Chief Executive of Dept of Corrective Services [2006] 1Qd R 565 (McPherson JA at [7] & Atkinson, J at [12] to [18]. 15 See R v Hallam (1998) 102 A Crim R 546 at -- 12 of 15 -- 13 often cited statement by Gibbs, J (as he then was) in Beckwith v The Queen (1976) 135 CLR 569 at [576]: “The rule formerly accepted, that statutes creating offences are to be strictly construed has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful, the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences… This rule is perhaps one of last resort.” [28] However, I have already stated that, in my view, consistent with Justice Brown in R v Lewis, that Section 50(1)(d)(iii) is unambiguous and does not require clarification. If it is unclear, pursuant to section 14A of the Acts Interpretation Act 1954 (Qld), recourse to the Explanatory Memorandum certainly clarifies the intention of parliament to prescribe such a mandatory minimum sentence.16 [29] Further and logically, the absence of a provision excluding probation and/or community serve as a sentencing option, creates such a lack of clarity. This was the reasoning in both Forbes v Jingle and R v Ham & Anor. The judgement in the latter expressed as: “ … 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 did not apply. ...” (my emphasis) [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. 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). 16 See paragraph [15] -- 13 of 15 -- 14 [31] Indeed, that logic could also establish the exact opposite. Using the same logic, the ancient expressio unius est exclusio alterius statutory interpretation maxim could apply.17 It is an implied exclusion argument that whenever there is reason to believe that had the legislature meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly.18 Because of this expectation, the legislature’s failure to mention the thing (viz the unavailability probation and community service) that becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied. [32] Great caution has been exercised in applying this Latin maxim. In Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94, the High Court said:- “[The] 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 … It is a valuable servant, but a dangerous master …” Similar caution must be applied to the logic pursued by the defendant that the legislature could and should have specifically excluded probation and community service if it meant for them to be unavailable. [33] There is also a further argument that maxim generalia specialibus non derogant applies here. The latter more specific legislative provision (viz, s50(1)(d)(iii)) overrules an earlier general provision (viz Sections 91 and 101 of the PSA). However, but even if it did, maxims such as that “are no substitute for consideration of the whole of the particular text, the construction of which is disputed, and its subject, scope and purpose”. 19 [34] As stated earlier, on the basis of the clear wording of Section 50(1)(d)(iii) of the Weapons Act (Qld) in the specific provisions that “a minimum penalty of 1 year’s imprisonment to be served wholly in a Corrective Services facility”, particularly when regard is had to Section 41 of the Acts Interpretation Act 1954 (Qld), and, if necessary, the Explanatory Memorandum, this court is constrained to apply that mandatory sentence. 17 See Coke, E The first part of the Institute of the Laws of England and Cates v Knight (1789) 3 TR 442 as cited in P Herzfeld & T Prince, Statutory Interpretation Principles (Thomson Reuters,2014) p21footnote 275 18 See John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 434; Salemi v Minister for immigration and Ethnic Affairs (No. 2) (19770 14 ALR 19 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom , p 586-7; see also Statutory Interpretation, Pearce, DC, Butterworths, 1974, [146]-[148] -- 14 of 15 -- 15 ORDER [35] The only sentencing outcome available to this court following the defendant’s conviction for the offence of possessing a short firearm in a public place pursuant to Section 50(1)(d)(iii) of the Weapons Act is 1 year’s imprisonment served wholly in a corrective services facility. Magistrate D MacKenzie -- 15 of 15 --