Criminal Code Amendment (Firearms Trafficking) Act 2022 (30 of 2022)

Schedule 1   Firearms trafficking

Criminal Code Act 1995

8   After section 360.3 of the Criminal Code

Insert:

360.3A Minimum penalties

(1) Subject to subsections (2) and (3), the court must impose a sentence of imprisonment of at least 5 years for a person convicted of an offence against this Division.

People aged under 18

(2) Subsection (1) does not apply to a person who was aged under 18 years when the offence was committed.

Reduction of minimum penalty

(3) A court may impose a sentence of imprisonment of less than the period specified in subsection (1) only if the court considers it appropriate to reduce the sentence because of either or both of the following:

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

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

(4) If a court may reduce a sentence, the court may reduce the sentence as follows:

(a) if the court is taking into account, under paragraph 16A(2)(g) of the Crimes Act 1914, the person pleading guilty - by an amount that is up to 25% of the period specified in subsection (1);

(b) if the court is taking into account, under paragraph 16A(2)(h) of that Act, the person having cooperated with law enforcement agencies in the investigation of the offence - by an amount that is up to 25% of the period specified in subsection (1);

(c) if the court is taking into account both of the matters in paragraphs (a) and (b) - by an amount that is up to 50% of the period specified in subsection (1).

360.3B Double jeopardy and alternative verdicts

Double jeopardy

(1) A person who has been convicted or acquitted of an aggravated offence may not be convicted of a basic offence relating to the aggravated offence that is alleged to have been committed in the period during which the person was alleged to have committed the aggravated offence.

(2) However, subsection (1) does not prevent an alternative verdict under subsection (4).

(3) A person who has been convicted or acquitted of a basic offence relating to an aggravated offence may not be convicted of the aggravated offence if any of the occasions relied on as evidence of the commission of the aggravated offence includes the conduct that constituted the basic offence.

Alternative verdict - aggravated offence not proven

(4) If, on a trial for an aggravated offence, the trier of fact:

(a) is not satisfied that the defendant is guilty of the aggravated offence; but

(b) is satisfied beyond reasonable doubt that he or she is guilty of the basic offence relating to the aggravated offence;

it may find the defendant not guilty of the aggravated offence but guilty of the basic offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Definitions

(5) In this section:

aggravated offence means an offence against subsection 360.2(2) or 360.3(1A).

basic offence relating to an aggravated offence means:

(a) if the aggravated offence is an offence against subsection 360.2(2) - an offence against subsection 360.2(1); or

(b) if the aggravated offence is an offence against subsection 360.3(1A) - an offence against subsection 360.3(1).