: Suppliers of illegal firearms responsible for their future use

Suppliers of illegal firearms responsible for their future use

Kellie Toole and David Plater
South Australia

The unprovoked shooting death of a teenager in Adelaide in 2012 led to a campaign for stricter firearms laws that has resulted in the passage of the Statutes Amendment (Firearms Offences) Act 2015 (SA) by the South Australian parliament. The new Act is due to come into operation some time in 2016.

The background to the new Act were the events of New Year's Eve 2012. Liam Humbles, aged 17, attended a party in Adelaide and became heavily intoxicated on a combination of alcohol and methylamphetamine. He fought with a friend over a drug sale and left the party in an agitated state and carrying a loaded .22 calibre semi-automatic handgun he had unlawfully obtained from Charles Cullen, his 20-year-old drug dealer.

At 7:30pm, Humbles passed 18-year-old Lewis McPherson, and two of his teenage friends, walking in the other direction toward a different party. The three young men greeted Humbles with words to the effect of 'What's up?'. Humbles fired at two of the teenagers but missed them both. Humbles then fired two shots at Mr McPherson which hit him in the chest, causing his death.

Humbles was subsequently convicted of one count of murder and two counts of attempted murder, and was sentenced to a lengthy period of imprisonment. Cullen was convicted of supplying Humbles with a Jensen .22 semi-automatic handgun without taking reasonable steps to satisfy himself that the person acquiring the firearm held a relevant permit, as well as other firearms and drug trafficking offences. He was sentenced, after applying a 30 per cent discount on account of prompt guilty pleas, to eight years imprisonment (four years for the drugs offences and four years for the firearms offences) with a minimum non-parole period of three years and three months.

The case generated much controversy, including over the fact that the existing statutory law and common law of extended common purpose was unable to attach criminal liability to Cullen for the shooting of McPherson. Public and political attention, and associated campaigning led by Mr McPherson's father, resulted in the passage of the Statutes Amendment (Firearms Offences) Act 2015 (SA) with all party support.

The new Act tightens sentences for firearms offending and introduces a new 'derivative' offence which provides that the supplier of an illicit firearm is criminally responsible for any subsequent offences committed with that firearm. If it applied at the time that Mr McPherson was murdered, Cullen's conviction of unlawfully supplying the illegal firearm to Humbles would have also allowed him to be convicted of murder and liable to the same sentence as Humbles.

The new derivative offence is certainly wide-ranging. It operates regardless of intention, knowledge, foresight, intention or remoteness. In this sense it imposes absolute liability for the consequences arising from the illegal supply of a firearm. The new offence has been described as 'unprecedented' by the Law Society of South Australia, which opposed its introduction. The Attorney-General accepts that the new offence departs from conventional principles of criminal liability and goes beyond the doctrine of extended common purpose. However, he justified it on the basis that firearms offences are a special case and it is appropriate that the unlawful supplier of a firearm be held criminally accountable for the consequences of the supply of 'a uniquely lethal weapon of spectacular danger.' The operation of the new offence will be interesting to see.

KELLIE TOOLE teaches criminal law and evidence law at the Adelaide Law School, and DAVID PLATER is the Deputy Director of the South Australian Law Reform Institute.

(2016) 41(2) AltLJ 139
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