Queensland’s highest court has reinstated a ‘mandatory’ 12-month jail sentence handed out by a magistrate – and later set-aside by a District Court judge on appeal – to a man convicted of possessing a homemade .22 pistol.
The Court of Appeal in Brisbane today allowed an appeal by Queensland’s Police Commissioner in one of the first tests to the imposition of mandatory jail terms for unlawful possession of weapons in public.
The court, comprising Court of Appeal President Walter Sofronoff and Justices Philip Morrison and Debra Mullins, was told Ethan Shane Broederlow was arrested and charged by police on 22 December 2018, when he volunteered that an illegal “silver homemade single shot pistol” was located in his car.
Justice Morrison, in a 14-page written decision, said: “(Broederlow) pleaded guilty to that charge (and 12 others) before a magistrate on April 10, 2019.”
“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 under (Section 50) of the Weapons Act.”
Section 50 1(d) (iii) of Queensland’s Weapons Act 1990 says: “The minimum penalty for an offence, committed by an adult…if the person unlawfully possesses a short firearm in a public place without a reasonable excuses…(is) one year’s imprisonment served wholly in a corrective services facility.”
Broederlow appealed the custodial sentence to the Beenleigh 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 a weapon.
That appeal was allowed and District Court Judge Craig Chowdhury resentenced Broederlow 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 (Section) 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,” Justice Morrison said.
Queensland’s Commissioner of Police appealed Judge Chowdhury’s ruling on the grounds he “erred by concluding that a period of probation” was open as a sentencing option.
The Court of Appeal agreed with the Commissioner and re-imposed the sentence first meted out by the magistrate.
“The contention advanced on behalf of the applicant is that the wording of (Section) 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,” Justice Morrison said.
“In my view, the (Commissioner of Police’s) contentions as to the construction of (Section) 50 of the Weapons Act should be accepted.
“Effectively it means that an offender is subject to that mandatory minimum (jail term) no matter what the circumstances of the offending and no matter how compelling the mitigating factors might be.”
In a unanimous 3-0 decision, the Court of Appeal allowed the appeal, set aside Judge Chowdhury’s orders and issued a warrant for the arrest of Broederlow so he could be detained and sent to prison to serve his original 12-month jail term.
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