Legislative Council Fifty-Third Parliament, Second Session (53-2) 53 2 Parliament of South Australia Legislative Council published Bills Statutes Amendment (Firearms Offences) Bill Statutes Amendment (Firearms Offences) Bill Statutes Amendment (Firearms Offences) Bill Second Reading Second Reading Second reading. The Hon. G.E. GAGO Legislative Council Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (16:11): I move: That this bill be now read a second time. I seek leave to have the second reading explanation inserted in Hansard without my reading it. Leave granted. This Bill implements a promise given to those affected by the tragic consequences of the Humbles case, particularly the father of the victim of the fatality, Mark McPherson. It is a promise easy to keep. For it is also complements the Government's already tough approach to illegal firearms and gun crime. There are two central measures. First, the bill designates the trafficking offences contained in s14 and s10C(10) of the Firearms Act 1977 as 'serious firearm offences' in fulfilment of a commitment made by the Government in July 2014. The bill also provides for a new extended statutory complicity offence, to ensure those offenders who commit serious firearms offences are held fully responsible for the consequences flowing from their offending. The Bill Serious Firearm Offences In September 2012, Parliament passed the Statutes Amendment (Serious Firearm Offences) Bill 2012 which was assented to on 27 September 2012. This Act is a series of interlocking measures that are aimed at attacking lawless firearms crime at the more serious end of the scale, with a view to the protection of the public and the deterrence of those who attack public integrity and wilfully ignore the message that gun crime will not be tolerated in South Australia. A central feature of the Act is the imposition of a very severe approach to the sentencing of serious firearm offenders. The Criminal Law (Sentencing) Act 1988 was amended to include in that category those offenders who commit a firearms offence involving the use or carriage of a firearm against the Firearms Act 1977 and the Criminal Law Consolidation Act 1935: that involves in any way a firearm that is illegal under all circumstances; that involves in any way a fully automatic firearm; and that involves in any way a handgun that is unregistered and the person is unlicensed. The consequence of falling within that category of offenders is that there will be a presumption that a sentence of immediate imprisonment will be imposed, and that the only reason for not imposing a sentence of immediate imprisonment will be 'exceptional circumstances'; and 'exceptional circumstances' cannot be found unless the sentencing court is satisfied by evidence on oath that the personal circumstances of the offender are sufficiently exceptional to outweigh the presumed primacy of public safety, and personal and general deterrence. On 16 July 2014, the Government announced that it would change the law so that an offence of trafficking in a firearm would qualify as a 'serious firearms offence', with the result that a serious firearm offender must be sentenced to a term of imprisonment, and that sentence cannot be suspended unless the offender can demonstrate to the court exceptional personal circumstances of mitigation such that the statutory policy of the criminal law to deter serious firearm offenders is outweighed. This Bill implements that promise. The Bill amends the current provisions to add to the categories of serious firearm offender referring to the use or carriage of a firearm offences of trafficking in a firearm contrary to sections 10C(10) and 14 of the Firearms Act 1977. In particular, that involves amending the definition of 'serious firearm offence' in s 20AA(1) of the Criminal Law (Sentencing) Act 1988. Derivative Liability Offence The liability of a person who is complicit in the criminal offences committed by another is governed by the law of complicity. It is partly statutory and partly common law. The statutory part is contained in s 267 of the Criminal Law Consolidation Act 1935. That says: 267—Aiding and abetting A person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender. But that is not the only source of derivative liability. At common law, a person may be found guilty of a crime committed by another if it was committed under a common purpose (sometimes known as 'joint enterprise') or, further, via a doctrine known as 'extended common purpose' (or 'extended joint enterprise'). The differences between these forms of liability rest on what the offender contemplates might follow from the joint enterprise. This is most simply illustrated by example. The most obvious example is the Humbles case. The defendant gives the principal offender a gun and the principal offender commits murder with it. Under what circumstances will the defendant be guilty of a homicide offence? The leading case on this particular question is R v Bainbridge [1960] 1 QB 129. The defendant in that case supplied oxy-acetylene torches to the principal offender who, in turn, used them to rob a bank. He was convicted of aiding the commission of the back robbery (and hence was convicted of bank robbery). On appeal, he agreed that he suspected that the torches would be used to commit a crime, but did not know which one. The court on appeal held that it was sufficient that he knew the general type of crime in contemplation—in this case a theft type of crime and upheld the conviction. The law on point was recently explained by Kourakis CJ in R v B, FG; R v S, BD [2012] SASC 157. He said: It is the state of mind of the alleged accessory at the time that the assistance is given that determines his or her liability. The degree of knowledge or belief of what the principal is doing or might do that is necessary for liability will depend on the facts of each case. For example, a garden and hardware salesperson who merely suspects that a customer intends to use the purchased items for an unlawful purpose is unlikely to be culpable. On the other hand, a salesperson who believes that the purpose is unlawful, perhaps on the basis of an overheard conversation, may be culpable even if his belief is not sufficiently certain to be characterised as knowledge. Much will depend on the degree of certainty, the existence of a lawful excuse or reason for providing the assistance and whether or not the alleged accessory desires the commission of the offence. The law requiring proof of the state of mind of the accessory for liability in complicity is complicated and hard to explain to a jury. Moreover, it has a tendency to limit extended complicity liability to cases in which there is temporal immediacy between the joint venture or common enterprise and the criminal outcome. The closer the link in time, the easier it is to draw the inference of foresight of the possibility of the type of crime actually committed. But it is arguable that the commission of a firearms offence is a special case. A firearm is a uniquely lethal weapon of spectacular danger. Laws surround its use and possession in great detail for that reason. The policy of the law should be that, if you put a 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. Firearms are uniquely and directly dangerous to life and limb and should be a special case. The Government therefore proposes that the law should be changed so that, if a person commits a firearm trafficking or supply offence, and the commission of that offence results (in fact), directly or indirectly, in a firearm coming into the possession of an unlicensed person, the first person is liable for certain offences committed by the second person with that firearm, whether the subsequent offence is committed in this State or, in accordance with a suggestion of the Commissioner of Police, in another jurisdiction. In the case of an offence committed in another jurisdiction, the liability of the defendant will be determined by reference to the actual offence committed in that jurisdiction, not by reference to the corresponding South Australian offence. For example, if the firearm is used in the course of a bank robbery in Victoria, the exposure to criminal liability of the defendant for the offence against new section s267AA will be equivalent to that for the relevant Victorian offence. The derivative offence has been designed to be a stand-alone offence, with a maximum penalty of a term of imprisonment no longer than the maximum term of the subsequent offence, being the offence committed by the person who has received the gun from the supplier. The emphasis has been placed on the conduct of the person supplying the firearm, rather than the outcome of the actions of the second (principal) offender. The new derivative liability offence is not unfair or unreasonable. It has its own maximum penalty, the supplier can be sentenced and the individual circumstances of their offending are then taken into consideration. The penalty is still related to the subsequent offence, to ensure that the supplier is still responsible for the consequences of their actions in supplying the firearm. The extended liability provision will apply to juveniles. So it should. That is the case responded to. By correct analogy with complicity, the juvenile caught by extended liability will be treated as a principal offender. The Bill says so. That means that the juvenile caught for homicide will be treated as a young offender. The critical age is the age of the offender at the time that the supply offence was committed. I commend the Bill to Members. Explanation of Clauses Explanation of Clauses Part 1—Preliminary 1—Short title 2—Commencement 3—Amendment provisions These clauses are formal. Part 2—Amendment of Criminal Law Consolidation Act 1935 4—Insertion of Part 7C This clause inserts new Part 7C into the principal Act. Part 7C inserts section 267AA. New section 267AA creates an offence where a person who, in the course of committing a prescribed firearms offence, unlawfully supplies a firearm to another and that firearm is subsequently used in the commission of an offence against the principal Act, or an offence under the law of another jurisdiction consisting of conduct that would, if engaged in this State, be an offence against the principal Act. A prescribed firearms offence is an offence against section 10C(10) or 14(1)(b) of the Firearms Act 1977. The maximum penalty for the new offence is imprisonment for a term not exceeding the maximum term that may be imposed for the subsequent offence. Part 3—Amendment of Criminal Law (Sentencing) Act 1988 5—Amendment of section 20AA—Interpretation This clause amends section 20AA of the principal Act to include an offence against section 10C(10) or 14 of the Firearms Act 1977 in the definition of serious firearm offence. Debate adjourned on motion of Hon. J.S. Lee.