Commonwealth of Australia Explanatory Memoranda

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CRIMINAL CODE AMENDMENT (FIREARMS TRAFFICKING) BILL 2015

                        2013-2014-2015-2016




    THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                  HOUSE OF REPRESENTATIVES




CRIMINAL CODE AMENDMENT (FIREARMS TRAFFICKING) BILL 2015




       ADDENDUM TO THE EXPLANATORY MEMORANDUM




                     (Circulated by authority of the
           Minister for Justice, the Hon Michael Keenan MP)
CRIMINAL CODE AMENDMENT (FIREARMS TRAFFICKING) BILL 2015

TREATMENT OF MINORS

Subsections 360.3A(2) and 361.5(2) to be inserted into the Criminal Code Act 1995
(Criminal Code) by the Criminal Code Amendment (Firearms Trafficking) Bill 2015 (the
Bill) provide that the mandatory minimum penalty otherwise in force for the trafficking of
firearms does not apply if it is established on the balance of probabilities that 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.

The Senate Legal and Constitutional Affairs Legislation Committee recommended the
Explanatory Memorandum clarify who bears the onus of proof in relation to the age of
defendants.

As this provision is framed as an exception to the law on mandatory minimums, the
provisions in the Criminal Code regarding defences will apply. As a result, the defendant
bears an evidential burden regarding their age, meaning they need to adduce or point to
evidence that suggests a reasonable possibility that they are under 18 (see section 13.3 of the
Criminal Code). If the defendant discharges that evidential burden, the prosecution must
prove beyond reasonable doubt that the defendant is aged over 18 (see section 13.3 of the
Criminal Code).

In this situation, a defendant will be in a better position to point to evidence of his or her age,
such as a birth certificate or a passport. This approach is consistent with the Commonwealth
Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers
which refers to the settled principle that it is appropriate to cast a matter as an evidential
burden defence where a matter is peculiarly within a defendant's knowledge and not
necessarily known to the prosecution.

TREATMENT OF INDIVIDUALS WITH SIGNIFICANT COGNITIVE
IMPAIRMENT

The Senate Legal and Constitutional Affairs Legislation Committee recommended the
Explanatory Memorandum clarify the operation of the mandatory minimum sentences in
relation to individuals with a significant cognitive impairment, specifically relating to the
discretion in setting the non-parole period.

The mandatory minimum sentences in the Bill 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.

This will preserve a court's discretion in sentencing, and will help ensure that 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.

In addition, section 7.3 of the Criminal Code sets out 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.
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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.




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