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Criminal Code Amendment (Firearms Trafficking) Bill 2017

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2016-2017

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

Criminal Code Amendment (Firearms Trafficking) Bill 2017

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments to be Moved on Behalf of the Government

 

 

(Circulated by authority of the

Minister for Justice, the Hon Michael Keenan MP)

                                                                                                        



 

AMENDMENTS TO THE Criminal Code Amendment (Firearms Trafficking) Bill 2017

(Government)

general Outline

1.                    These amendments to the Criminal Code Amendment (Firearms Trafficking) Bill 2017 (‘the Bill’) and the Explanatory Memorandum to the Bill introduce mandatory minimum sentences of five years’ imprisonment for firearms trafficking. The mandatory minimum sentences will apply to:

·          trafficking firearms and firearms parts within Australia (in Division 360 of the Criminal Code), and

·          trafficking firearms and firearms parts into and out of Australia (in Division 361 of the Criminal Code).

2.                   The amendments also allow a court to discount the mandatory minimum sentence if the offender pleads guilty to the offence and/or co-operates with law enforcement agencies.

3.                   The mandatory minimum sentences reflect the serious nature and potential consequences of supplying firearms and firearm parts to the illicit market. In addition, the introduction of mandatory minimum sentences of five years’ imprisonment for these firearms trafficking offences implements the Government’s Keeping illegal guns off our streets and our communities safe election policy, released 26 June 2016.

FINANCIAL IMPACT

4.                   The amendments to the Bill will have no financial impact on Government revenue.

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Criminal Code Amendment (Firearms Trafficking) Bill 2017

1.                 The amendments to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 . To the extent that the amendments may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes of the amendments.

Overview of the Bill

2.                 The amendments to the Bill provide a mandatory minimum sentence of five years’ imprisonment for the offences of:

·          trafficking firearms and firearms parts within Australia (in Division 360 of the Criminal Code), and

·          trafficking firearms and firearms parts into and out of Australia (in Division 361 of the Criminal Code).

3.                 The mandatory minimum sentences will not apply to people aged under 18 at the time the offence was committed.

4.                 The amendments also allow a court to discount the mandatory minimum sentence if the offender pleads guilty to the offence and/or co-operates with law enforcement agencies.

5.                 These offences ensure firearms traffickers can be held responsible for the consequences of supplying firearms into the illicit market from both domestic and international sources. The offences also support efforts to prevent the diversion of firearms into illicit markets overseas. Due to its enduring nature, a firearm can remain within the illicit market for many years and be accessed by serious and organised crime groups for use in the commission of violent crimes. The mandatory minimum sentences reflect the serious nature and potential consequences of supplying firearms and firearm parts to the illicit market. In addition, the introduction of mandatory minimum sentences of five years’ imprisonment for these firearms trafficking offences implements the Government’s election commitment made in the Government’s Keeping illegal guns off our streets and our communities safe election policy, released 26 June 2016.   

Human rights implications

6.                 The amendments engage the right to freedom from arbitrary detention under Article 9(1) of the ICCPR. Article 9(1) of the ICCPR states:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

7.                 This right is engaged by the new mandatory minimum sentence of five years imprisonment for each of the firearms trafficking offences in Divisions 360 and 361 of Part 9.4 of the Criminal Code.

8.                 In addition to having a lawful basis for detention, the prohibition on arbitrary detention under Article 9(1) requires that in all circumstances, the detention of the particular individual must be justified as reasonable, necessary and proportionate to the end that is sought.

9.                 The mandatory minimum penalty of five years’ imprisonment is reasonable to achieve the legitimate objective of ensuring the courts are able to hand down sentences to firearms trafficking offenders that reflect the seriousness of their offending. Importantly, the new penalties are reasonable given they will only be applied by a court if a person is convicted of an offence as a result of a fair trial in accordance with the procedures as established by law. Further, the mandatory minimum sentences will apply only to offences committed at or after the commencement of the Bill.

10.             The mandatory minimum penalty of five years’ imprisonment is necessary to ensure the serious offences of firearms trafficking are matched by commensurate punishments. There are clear and serious social and systemic harms associated with firearms trafficking, and the introduction of a mandatory minimum penalty for the offences reflects the gravity of supplying firearms and firearm parts to the illicit market. The entry of even a small number of firearms into Australia’s illicit firearms market can have a significant impact on the community. Due to their imperishable nature, firearms can remain within that market for many years and be accessed by individuals and groups who would use them to commit serious and violent crimes, such as murder. For example, in 2015 firearms were identified as being the type of weapon used in 11% of homicides in Australia and 17% of homicides where a weapon was used ( Recorded Crime - Victims, Australia, 2015 , Australian Bureau of Statistics).

11.             The amendments do not impose a minimum non-parole period for offenders. Indeed, the mandatory minimum is not intended as a guide to the non-parole period, which in some cases may differ significantly from the head sentence. Further, the amendments do not apply the mandatory minimum penalties to children (those under the age of 18). This preserves judicial discretion in sentencing to take into account minors’ particular circumstances. In this way, any risk that the sentencing of lower culpability offenders could amount to arbitrary detention is removed.

Treatment of minors

12.             Subsections 360.3A(2) and 361.5(2) to be inserted into the Criminal Code by the Government amendments provide that the mandatory minimum penalty otherwise in force for the trafficking of firearms does not apply if the person was aged under 18 years when the offence was committed. This preserves judicial discretion when sentencing to take into account the particular circumstances of minors.

Treatment of individuals with significant cognitive impairment

13.             The mandatory minimum sentences in the Government amendments do not impose a minimum non-parole period for offenders. Indeed, the mandatory minimum is not intended as a guide to the non-parole period, which in some cases may differ significantly from the head sentence.

14.             This will preserve a court’s discretion in sentencing, and will help ensure custodial sentences imposed by courts are able to take into account the particular circumstances of the offender, including any mitigating factors such as cognitive impairment.

15.             In addition, section 7.3 of the Criminal Code provides that a person is not criminally responsible for an offence if at the time of carrying out the conduct the person was suffering from a mental impairment that affected their ability to know the nature and quality of the conduct, know that the conduct was wrong or was unable to control the conduct. The onus is on the defendant to bring forward evidence supporting their cognitive ability.

16.             Taken together, the discretion in setting the non-parole period and the mental impairment defence in the Criminal Code ensure that mandatory minimum sentences will not result in the unjust treatment of individuals with a significant cognitive impairment.

Discounts for guilty pleas and cooperation with law enforcement agencies

17.             The amendments also allow a court to discount the mandatory minimum sentence where an offender pleads guilty and/or cooperates with law enforcement agencies.  These amendments are designed to encourage guilty pleas and cooperation by offenders.

Conclusion

18.             The new mandatory minimum penalty for firearms trafficking offences in the Criminal Code as set out in the Government amendments are compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 . To the extent these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate to achieving reductions in gun-related crime.



 

NOTES ON AMENDMENTS

Amendment 1: Item 2

Item 2

1.                 Item 2 inserts new subsection 360.3A(1) to apply a mandatory minimum sentence of five years’ imprisonment if a person is convicted of an offence against Division 360.

2.                 The amendment does not prescribe a minimum non-parole period. This will preserve a court’s discretion in sentencing, and will help ensure custodial sentences imposed by courts are able to take into account the particular circumstances of the offence and the offender.

3.                 Item 2 also inserts new subsection 360.3A(2) which states the mandatory minimum sentences will not apply if the person was aged under 18 years when the offence was committed. This preserves judicial discretion when sentencing to take into account the particular circumstances of minors. This is consistent with Division 309 of the Criminal Code, which reduces the culpability of children who commit drug trafficking offences.

4.                 The amendments to the Bill also recognise the value of a guilty plea and cooperation with law enforcement. Guilty pleas are crucial to provide for a more efficient and effective criminal justice system and to reduce impacts on witnesses and victims.

5.                 The new subsection 360.3A(3) permits the court to impose a sentence of imprisonment of less than five years’ imprisonment if the court considers it appropriate to do so because:

(a) the court is taking into account, under paragraph 16A(2)(g) of the Crimes Act 1914 , the person pleading guilty, and/or

(b) the court is taking into account, under paragraph 16A(2)(h) of the Crimes Act 1914 , the person having cooperated with law enforcement agencies in the investigation of the offence.

6.                 Subsection 360.3A(4) sets out the restrictions on any reductions. These are:

·          paragraph 360.3A(4)(a), which allows for a reduction of up to 25% of five years should the court reduce the minimum penalty pursuant to subsection 360.3A(3) for pleading guilty

·          paragraph 360.3A(4)(b), which allows for a reduction of up to 25% of five years should the court reduce the minimum penalty pursuant to subsection 360.3A(3) for cooperating with law enforcement agencies

·          paragraph 360.3A(4)(c), which allows for a reduction of up to 50% taking into account both pleading guilty (paragraph (a)) and cooperating with law enforcement agencies (paragraph (b)).

7.                 The mandatory minimum sentence is not intended as a guide to the non-parole period, which in some cases may differ significantly from the head sentence.

8.                 The Commonwealth has adopted a range of measures in response to the threat posed by illicit firearms, one of which is sentencing people convicted of firearms trafficking offences to mandatory minimum prison terms. The Government believes mandatory minimum sentences, when applied to individuals convicted of serious offences, are an effective way to deter potential offenders from firearms trafficking. The severe mandatory penalties associated with the firearms trafficking sentencing regime accord with the criminality of firearms smuggling, but must be carefully directed towards those whose individual culpability also justifies mandatory terms of imprisonment.

Amendment 2: Items 4 and 5

Item 4

9.                 Item 4 inserts new subsection 361.5(1) to apply a mandatory minimum sentence of five years’ imprisonment if a person is convicted of an offence against Division 361.

10.             Item 4 also inserts new subsection 361.5(2) which states the mandatory minimum sentences will not apply if the person was aged under 18 years when the offence was committed. This preserves judicial discretion when sentencing to take into account the particular circumstances of minors. This is consistent with Division 309 of the Criminal Code, which reduces the culpability of children who commit drug trafficking offences.

11.             The amendment does not prescribe a minimum non-parole period. This will preserve a court’s discretion in sentencing, and will help ensure custodial sentences imposed by courts are able to take into account the particular circumstances of the offence and the offender.

12.             The new subsection 361.5(3) permits the court to impose a sentence of imprisonment of less than five years imprisonment if the court considers it appropriate to do so because:

(a) the court is taking into account, under paragraph 16A(2)(g) of the Crimes Act 1914 , the person pleading guilty, and/or

(b) the court is taking into account, under paragraph 16A(2)(h) of the Crimes Act 1914 , the person having cooperated with law enforcement agencies in the investigation of the offence.

13.             Subsection 361.5(4) sets out the restrictions on any reductions. These are:

·          paragraph 361.5(4)(a), which allows for a reduction of up to 25% of five years should the court reduce the minimum penalty pursuant to subsection 361.5(3) for pleading guilty

·          paragraph 361.5(4)(b), which allows for a reduction of up to 25% of five years should the court reduce the minimum penalty pursuant to subsection 361.5(3) for cooperating with law enforcement agencies

·          paragraph 361.5(4)(c), which allows for a reduction of up to 50% taking into account both pleading guilty (paragraph (a)) and cooperating with law enforcement agencies (paragraph (b)).

14.             The mandatory minimum sentence is not intended as a guide to the non-parole period, which in some cases may differ significantly from the head sentence.

15.             The Commonwealth has adopted a range of measures in response to the threat posed by illicit firearms, one of which is sentencing people convicted of firearms trafficking offences to mandatory minimum prison terms. Mandatory minimum sentences, when applied to individuals convicted of serious offences, are an effective way to deter potential offenders from firearms trafficking. The severe mandatory penalties associated with the firearms trafficking sentencing regime accord with the criminality of firearms smuggling, but must be carefully directed towards those whose individual culpability also justifies mandatory terms of imprisonment.

Item 5

16.             Item 5 applies the new mandatory minimum sentences only to conduct engaged in at or after the commencement of the Schedule.