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29 Oct 2015

Statutes Amendment (Firearms Offences) Amendment Bill

Adjourned debate on second reading.

(Continued from 15 October 2015.)

The Hon. A.L. McLACHLAN ( 16:35 ): I rise to speak to the Statutes Amendment (Firearms Offences) Bill 2015, and I speak to this bill on behalf of my Liberal colleagues in this chamber. I advise the chamber that the Liberal Party will be supporting the second reading of this bill.

The genesis of this bill comes from the tragic events that occurred in 2013, resulting in the tragic loss of life of a young man. As a consequence of those events, the government has introduced this bill. Earlier, before the introduction of this bill in the other place, in September 2012 parliament passed the Statutes Amendments (Serious Firearms Offences) Bill 2012 which introduced a new approach to the sentencing of serious firearm offenders. The Criminal Law (Sentencing Act) was also amended. The effect of these amendments was that the following categories of offences attracted a presumption that a sentence of immediate imprisonment would be imposed unless there were exceptional circumstances justifying departure from this course.

Offences involve an illegal firearm, a fully-automatic firearm and a handgun that is unregistered and the person is unlicensed. This bill reclassifies offences under section 10C(10) and section 14 of the Firearms Act as serious firearm offences by adding them to the definition in the Criminal Law (Sentencing) Act. Section 10C(10) makes it an offence to supply a firearm to a person to whom a firearm’s prohibition order applies and section 14 makes it an offence of trafficking in firearms which includes acquiring a firearm without a licence or supplying a firearm to someone without a licence. It follows that pursuant to the bill anyone found guilty of a trafficking offence will be sentenced to a term of imprisonment which cannot be suspended unless the offender can demonstrate exceptional circumstances.

This bill also creates a derivative liability offence which operates on an absolute liability basis. If a person commits a firearm trafficking or supply offence, and the commission of the offence results directly—in fact, directly or indirectly—in a firearm coming into the possession of an unlicensed person, the first person is liable for any offence committed by the second person with that firearm. It has been drafted as a stand-alone offence with a maximum penalty being a term of imprisonment but no longer than the maximum term of the subsequent offence—that is, the offence committed by the person who receives the gun. The extended liability provisions will apply to juveniles.

The government has asserted that, while the concept of derivative liability is novel, its principles fall within the parameters of the common law along a similar vein as joint enterprises and the law of complicity.

I note that the government moved amendments in the House of Assembly that passed with opposition support. Under the first drafting of the bill, the subsequent offence committed with the unlawfully supplied firearm would only fall within the bill if committed in South Australia. The government amendment to the bill was drafted at the request of the South Australian Commissioner of Police so that the bill extends to where a subsequent offence is committed in breach of either interstate or South Australian law.

A subsequent offence, for the purposes of criminal liability, is equivalent to the interstate offence actually committed and not equivalent to the corresponding South Australian offence. So if a gun is used to commit a bank robbery in Victoria the subsequent offence is the equivalent to the Victorian offence, whatever the exposure to a liability might be and not the South Australian robbery offence.

The clauses of this bill have been strongly criticised by the Law Society. For the purposes of completeness, I will be reading a large part of the letter which was sent to the Hon. John Rau, the member for Enfield, Deputy Premier and Attorney-General. The letter is dated 1 September 2015 and it has been written by the President of the Law Society. It states:

The Law Society opposes this bill for the following reasons:

(a) There is no place for derivative liabi lity in the criminal law. This B ill makes into a criminal offence an act based on loose principles of causation which, in many instances, would not give rise to tortious liability;

(b) The proposed offence is not in character a criminal offence. It is not capable of being defended. Any trial for the offence must necessarily be u nfair. It appears to be invalid;

(c) Criminal liability for serious offences must include mental and physical elements. T he proposed offence has neither;

(d) The proposed offence is unfair and unjust. The essence of the offence is in the prescribed offence, which has already been prosecuted. The person who supplies the weapon is then at jeopardy a second time if a subsequent offence occurs. The prescribed offender would have no involvement in the subsequent offence. The prescribed offender then faces being sentenced for a second time for the same conduct. Both sentences would b e lengthy terms of imprisonment;

(e) There is no need for the proposed offence , because the present offence of supply is serious enough , attracting serious penalties.

Those points (a) to (e) constitute the Executive Summary of the letter. In the substantive part of the letter, under the heading ‘Underlying Purpose of the Bill’, it goes on to say:

As stated in the Explanatory Report the Bill purports to be a direct response to the ‘Humbles case’ and gives effect to a ‘promise’ given to those affected. Principally, the Bill provides a mechanism for those who supply/traffic illegally in firearms to be held accountable for the purposes of any person who subsequently should use the firearms for a criminal purpose.

The underlying policy of the bill is revealed in the following statement in the Explanatory Report:

‘ …if you put the gun in the hands of an irresponsible person, and you do so illegally, then you wear the consequences of that action. Cullen should be guilty, not just of the weapons offences, but of murder or manslaughter. ‘

The Society is concerned that the base proposition emphasised above and upon which the Bill is founded is, from a legal perspective and without more, unfounded.

The Society has a number of concerns in relation both to the underlying purpose of the Bill as well as the manner in which it gives effect to that purpose. The Society opposes the bill.

It is, in the Society’s submission, inherently dangerous to enact legislation in direct response to a single incident and to do so in fulfilment of a ‘promise’ purportedly given not to the South Australian public but to a select group.

When one considers the respective sentences imposed upon both Humbles and Cullen it is not immediately apparent why legislative intervention is required. Humbles was sentenced to life imprisonment with a non – parole period of 23 years (later reduced on appeal to 17 years). Cullen, whose offending extended beyond the supply of a firearm to Humbles, was sentenced (after applying a 30% discount on account of his guilty plea) to 8 years imprisonment with a non – parole period of 3 years 9 months. It cannot reasonably be suggested that these sentences are inadequate or would otherwise be contrary to those that might be expected by the public.

Ultimately, it is the Society’s submission that the Bill, and more specifically the derivative liability provision contained therein (section 267AA) , is surplus to requirements. The law as it stands in South Australia is capable of holding appropriately to account those who commit firearm offences and, in particular, those who supply a firearm to another with the knowledge that it will be used subsequently for a criminal purpose.

The next section, headed ‘The extension of criminal responsibility’, states:

The principle that a person can only be held criminally liable for their own acts has been eroded such that a person may now be criminally liable in a number of ways for a crime physically committed by another person. That erosion has largely been affected by the development of the common law.

As identified in the Explanatory Report, the law in relation to derivative liability in South Australia is both settled and effective. The current statutory and common law is such that a person will be held criminally liable for the act of another in circumstances where they have aided, abetted or procured the commission of that act or have engaged in a joint criminal enterprise to that end.

A person’s liability for the act of another is in part referrable to that person’s state of mind at the time of the assistance provided. In other words, the trier of fact must ask: did the accused know of the person’s intention to commit the subsequent act or in the case of a criminal enterprise, was it within contemplation or otherwise foreseeable?

The effect of the Bill is to remove that element of knowledge (actual or constructive) from the equation. Accordingly, a person could be held liable for the actions of another whose identity and intentions they have no knowledge of or could not have foreseen. This is a step too far.

The lack of any mental element, or mens rea, is particularly troubling in circumstances where the nature of the new derivative liability offence is such that there is also no physical element, or actus reus. This begs the question, what are the elements of the new offence created by the Bill?

It appears to the Society that the Bill, rather than creating a new offence capable of being prosecuted in a Court of law in accordance with established principles, in fact establishes an administrative process whereby a person upon two conditions precedent being realised becomes liable to be sentenced for an act in respect of which, in the majority of cases, the person will already have been sentenced for.

The Society is not aware of any legislation in any other Australian jurisdiction that extends criminal responsibility to the extend proposed in the Bill. It is unprecedented.

The Society understands the serious danger posed by the illegal use of firearms and their capacity for destruction. Nevertheless, the Society is not convinced that ‘the policy of the law should be that, if you put a gun into the hands of an irresponsible person, and you do so illegally, then you wear the consequences of that action.’ Such a sentiment, though noble, is again contrary to established legal principles.

If this is to be the policy in respect of firearms then the public would be entitled to ask—why stop here? Why not extend criminal liability to the drug dealer whose consumer later overdoses or to the bartender who serves alcohol to a patron who later king-hits a passer-by? Such questions raise a wide range of complex moral issues, which the Society does not propose to address in this submission. Nevertheless, there is in the Society’s submission there is little to be distinguished between these examples and the subject of the Bill.

Further, and as foreshadowed earlier, the Society does not agree as a matter of law with the base proposition that underpins the Bill, namely, that ‘Cullen should be guilty…of murder or manslaughter.’ The Society acknowledges that there are circumstances where a person who supplies a firearm to another ought to be guilty of a subsequent murder committed by that person with the firearm supplied.

However, any finding of guilt to the offence of murder must occur after a trial in which the necessary elements of that offence are proved beyond reasonable doubt. The law in South Australia is capable of providing for such an outcome. Had the Director of Public Prosecutions (South Australia) formed a view that Cullen was an accessory to, or causative of, the murder committed by Humbles it was available to him to lay an Information accordingly.

The next section, entitled ‘Causation’, states:

Leading on from the above, it is the Society’s submission that the Bill’s extension of criminal responsibility is contrary to the common law principle of causation, the basic tenet of which is that an ‘accused’s conduct need not be the sole, direct or immediate cause of death. It is enough that the applicant’s conduct contributed significantly to the death of the victim.’ However, and critically, ‘where the death is not caused directly by the conduct of the accused but by something done by a third person, there may be a question whether the chain of causation has been broken.’

For a comprehensive discussion on the principle of causation, particularly in the case of homicide, we refer you to the English case of R v Pagett (1983 ) 76 Cr App Rep 279. In that case, Lord Justice Goff stated:

‘ Problems of causation have troubled philosophers and lawyers throughout the ages ; and it would be rash in the extreme for us to trespass beyond boundaries of our immediate problem. ‘

The effect of the B ill is to remove the troublesome , but entirely necessary , question of causation from the equation. The B ill essentially provides for an automatic assumption that the unlawful supply of a fi rearm is causative of any offence committed by any person who may subsequently come to possess and use that firearm. That, as a general proposition cannot on any view be correct. There are many and varied ways in which the law has recognised that a chain of causation can be broken.

Lord Goff in Pagett states relevantly:

‘ In cases of homicide, it is rarely necessary to give the jury any direction on causation as such. Of course, a necessary ingredient of crimes of murder and manslaughter is that the accused has by his act caused the victim’s death … Even where it is necessary to direct the jury’s mind s to the question of causation, it is usually enough to direct them simply that in law the accused’s act need not be the sole cause , or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result. It is right to observe in passing, however, that even this simple direction is the direction of law relating to causation , on the basis of which the jury are bound to act in concluding whether the prosecution has established, as a matter of fact, that the accused’s act did in this sense cause the victim’s death. Occasionally, however, a specific issue of causation may arise. One case is where, although an act of the accused constitutes a causa sine qua non of ( or necessary condition for ) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim’s death, thereby relieving the accused of criminal responsibility. Such intervention, if it has such an effect, has often been described by lawyers as novus actus interven iens . ‘

Lord Goff then broadly expressed support for the contention that ‘ the circumstances in which the intervention of the third person, not acting in concert with the accused, may have the effect of relieving the accused of criminal responsibility’ include whether ‘ the intervention is voluntary , i e. whether it is ” free, deliberate and in formed ” . ‘

With respect , the passages set out above expose the degree to which this B ill is contrary to the established legal principles that have been the subject of much discussion and consideration in the highest Common Law Courts.

The next section is entitled, ‘Does the bill address a deficiency in the criminal justice system?’

It is not clear from the Explanatory Report whether any analysis has been conducted in relation to the nature of the sentences imposed by South Australian courts upon those convicted of offences against sections 10C(10) and 14 of the Firearms Act 1977. Notably, the maximum penalty in respect of those offences is 15 and 20 years imprisonment respectively.

The Society submits that legislative intervention designed to address a perceived or prospective shortfall in the judicial system should be made only after careful consideration of its necessity. In this case, the ‘ shortfall ‘ is presumably a purported failure by sentencing Judges to consider the significant danger to the public caused by the dissemination of unregistered firearms to unlicensed persons.

If that is a consideration that the legislature desires Judges to have particular regard to when sentencing ‘ serious firearms offenders ‘ , then there are much simpler ways than this B ill to require it of them.

For example, section 10 of the Criminal Law (Sentencing) Act 1988 sets out a number of matters that a Court must have regard to in determining sentence. This includes, for example:

•the circumstances of any victim of the offence—section 10B(1)(d);

•if the offence was committed by an adult in the presence of a child—section 10(1)(f); and

•any injury, loss or damage resulting from the offence—section 10(1)(e).

Although section 10(1 )(1)(o) the Court to consider ‘ any other relevant matter ‘ , if Parliament wished to put it beyond doubt it could amend the Criminal Law (Sentencing) Act 1988 to include a further consideration of section 10, for example:

‘ in determining the sentence for a serious firearm offence, a court must have regard to the danger caused by the unchecked distribution of firearms within the community. ‘

The next section is titled ‘Concerns as to how the bill gives effect to its purpose’, and states:

In addition to the concerns set out above in relation to the utility, purpose and base proposition that underpins the Bill, the Society has identified a number of potential issues with the proposed execution. In particular, the new section 267AA offence creates:

• a potentially unlimited category of offenders;

• uncertainty for convicted offenders, which at its highest level arguably amounts to cruel and unusual punishment;

• an offence that, in most circumstances, would likely be impossible to defend successfully;

• an offence without the traditional elements required to be proved beyond reasonable doubt; and,

• uncertainty as to its retrospectivity.

The proposed section 267AA(2)(b) provides that ‘the subsequent offender need not be the person to whom the accused supplied the firearm in respect of the prescribed firearm offence’.

The bill as drafted does not place any limitation upon the degrees of separation between an accused and the principal offender (as defined in the bill). It is entirely possible for a firearm to be subject of multiple exchanges before ultimately being used in the commission of a criminal offence.

Accordingly, for each criminal offence committed by a subsequent offender, there could be innumerable persons liable to be prosecuted pursuant to the section 267AA. By way of example:

• If John legally acquires a class-H handgun before illegally supplying it to James;

• James holds on to a firearm for 1 year before illegally supplying it to Phillip;

• Phillip two days later illegally supplies the firearm to Paul;

• Paul stores the firearm for 4 years before illegally supplying it to Keith; and,

• Keith then 2 months later uses the firearm to commit murder; then

• Pursuant to section 267AA of the Bill, each of John, James, Phillip, Paul and Keith are liable to be sentenced to life imprisonment.

That situation is, on any view, particularly when regard is had to the principles of causation discussed above, unsatisfactory.

The proposed section 267AA(2)(a) provides that the subsequent offence may be committed before or after the accused is found guilty of the prescribed firearm offence. The bill as drafted does not place any temporal imitation upon the original supply offence and the subsequent offence, as defined in the Bill. Without such a limitation it is entirely possible that a person could serve the entirety of their sentence in respect of the original offence only to be later punished again for what is, in fact, the very same act.

This creates a situation where persons who illegally supply a firearm will forever be in jeopardy (or until the firearm supplied is either used in the commission of an offence or otherwise located by authorities before that happens). The Society submits that this is manifestly unfair, unreasonable and also a barrier to rehabilitation.

It is the Society’s submission that to require a person to live in constant jeopardy, even after they have served the entirety of their sentence, may amount to a cruel and unusual punishment and a violation of that person’s human rights. For example, how is that person to plan for the future, or what motivation do they have to better themselves and their station in life in circumstances where they could, at any moment, be arrested and imprisoned for a crime committed by a person they may have never met ?

The effect of the Bill could, in the Society’s respectful submission, be viewed as being contrary to the recent statements made by your Department in the June 2015 Discussion Paper, ‘Transforming Criminal Justice—Better Sentencing Options: Creating the Best Outcomes for Our Community’.

The purpose of that discussion paper was to reconsider what the appropriate sentencing outcomes are for those offenders for whom rehabilitation is a possibility. The Society queries whether the further incarceration of persons who have served their sentence and affected their rehabilitation constitutes an appropriate sentencing outcome.

This problem has been identified previously in this submission where the Society posed the question—what are the elements of the offence created by the Bill?

It seems to the Society that the offence created by section 267AA is not an offence in the traditional sense. That is, one committed upon the satisfaction of certain mental and physical elements but, rather, one committed upon two separate findings of fact being made by a court. Any question of causation, ordinarily left for the jury, is usurped.

In those circumstances, how does the accused defend the charge? Is an accused able to challenge the verdict of a Judge or jury in relation to the subsequent offence? Should an accused be able to be heard in the trial of the subsequent offender and take points or raise defences that otherwise would not be made? On paper, this of course sounds absurd. But, in circumstances where the section 267AA accused is in no less jeopardy than the subsequent offender—why shouldn’t they have a right to be heard?

An individual’s right to be heard or to challenge a criminal allegation or decision that affects that individual is fundamental to our justice system and to Australian society. Any attempt by the legislature to infringe upon that right must be scrutinized with the utmost care to ensure that any infringement is:

•absolutely necessary; and

•the infringement is precisely proportionate to the issue sought to be addressed.

As stated by the High Court in Coco v R (1994) 179 CLR 427 at 437:

‘The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms and immunities, but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakeable and unambiguous language.’

The Society is concerned that the effect that the Bill has upon the fundamental rights of the South Australian public has not been considered adequately.

The Society notes that the Bill does not contain any transitional provisions. That is particularly unsatisfactory when the Bill, on its face, purports to govern events and findings of fact that may have occurred long before the Bill is ultimately assented to.

For example, it is entirely possible that a firearm, illegally supplied, say, two years ago could be used in the commission of an offence well after the Bill becomes an enactment and is assented to.

Accordingly, is it intended that all persons who have been found guilty of offences contrary to the sections 10C(10) and 14 of the Firearms Act 1977 (South Australia) since their commencement will be, upon the commission of a subsequent offence (as defined by the Bill), liable to prosecution pursuant to the new section 267AA? If that is the intention, then the Society is opposed to such a course.

If that is the intention of the Bill then it creates a number of further practical difficulties and only serves to heighten the unfairness discussed [in paragraphs above].

The next section is titled ‘Is the Bill unconstitutional?’

Finally, the Society has considered briefly whether the Bill may in fact be unconstitutional. The Society’s answer to the question posed is: quite possibly.

It is arguable that, for certain reasons set out in this submission, the effect of the Bill is to deny a person a fair trial according to law. To do so would be unconstitutional. As stated by Gaudron J in Dietrich v R (1992) 177 CLR 293 at 362:

‘The fundamental requirement that a trial be fair is entrenched in the Commonwealth Constitution by Chapter III’s implicit requirement that judicial power be exercised in accordance with the judicial process.’

In the Society’s submission, it is questionable whether the prosecution of an offence under the proposed section 267AA could be described as being ‘in accordance with the judicial process’. It appears to the Society to be nothing more than a rubber stamp exercise. In that regard, the Bill arguably infringes upon judicial independence.

As stated by the Chief Justice French in South Australia v Totani (2010) 242 CLR 1 at 20:

‘Courts and judges decide cases independently of the executive government. That is part of Australia’s common law heritage which is antecedent to the Constitution and supplies principles for its interpretation and operation. Judicial independence is an assumption which underlines CH III of the Constitution….’

‘It is a requirement of the Constitution that judicial independence be maintained in reality and appearance for the courts created by the Commonwealth and for the courts of the States and Territories. Observance of that requirement is never more important than when decisions affecting personal liberty and liability to criminal penalties are to be made.’

Could it be said that a successful prosecution pursuant to the proposed section 267AA has been decided ‘independently of the executive government’ ? The Society does not believe so. On one view the accused is only guilty because the executive has deemed him or her to be so…In many cases, if such an accused were tried according to law and was able to question for example, whether their act was causative of the subsequent offence, they would likely, in many cases, be entitled to an acquittal.

The final section entitled ‘Conclusion’ goes on to say:

The Society must oppose this Bill. It provides for an automatic and unprecedented extension of criminal liability that imputes causation without any regard to the facts of a particular case. It is arguably unconstitutional. The Bill, in the Society’s submission, cannot stand.

In considering this bill, a line of one of Horace Mann’s lectures comes to mind:

The object of punishment is, prevention from evil; it never can be made impulsive to good.

Much of the community discussion has centred on the access to trafficked firearms. Unregistered firearms are a threat to all of us in the community. However, there has been very little discussion about the two young men who have fallen into drug dealing and the evils of the subculture. The conversation should not only be about the firearms, or the firearm in this instance, but also what we should be doing better in our community to prevent young people sliding into this morass.

In my experience, drug and alcohol-affected youths rarely do a risk-assessment exercise examining the consequences of breaching the law. This law may, given its broad and long-lasting reach, prove more punitive than preventing the trafficking of firearms which is really the real goal, or should be the real goal of all of us in this chamber, together with keeping our youths safe. I leave the chamber with a quote from the great poet, speaking through Portia:

Though justice be thy plea, consider this,

That, in the course of justice , none of us

Should see salvation: we do pray for mercy;

And that same prayer doth teach us all to render

The deeds of mercy.

I commend the bill to the chamber.

Debate adjourned on motion of Hon. G.A. Kandelaars .

See full session on Hansard

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