Firearms and Weapons Offences - next step legal guide

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Strike Force Raptor Officers Conduct Raids on Properties in Junee and Temora - Daily Advertiser article

 

The NSW courts treat any breach of the firearms legislation harshly. The higher courts have increasingly called for lengthy jail terms and substantial fines for serious infractions. The firearms legislation regulates the licencing, possession, sale and manufacture of firearms. We have listed the more common firearms offence categories below and notes about what you can do. 

 

Unregistered firearms

The law in NSW is that all firearms must be 'registered' in a Firearms Registry. The Registry provides proof of registration through a Certificate of Registration - this certificate certifies that a particular firearm with a unique serial number is registered. 

It is an offence to supply, acquire, use or possess a pistol or prohibited firearm, such as a machine gun, self-loading rifle or pump action shotgun, that is not registered – s.36 Firearms Act 1996. The maximum penalty for this offence depends on the kind of firearm:

  • A pistol or prohibited firearm – 14 years’ imprisonment
  • Any other firearm – 5 years’ imprisonment

You do not have to have the pistol or prohibited firearm on your person to be found to be in 'possession' of a firearm.

You will be held to be in the 'possession' of a firearm if it is found at premises that you own, lease or occupy, or at premises which you control, care or manage – s.4A Firearms Act 1996.

 

Defences

If you have been charged with this offence, then there are a number of defences that are available. It is a defence if you prove that:

  • You did not know, or could not reasonably be expected to have known, that the firearm in question was unregistered AND you were not the owner of the firearm at the time of the offence
  • You submitted the application for registration of the firearm within 24 hours of acquiring the firearm
  • The weapon is registered under a law in a state or territory other than NSW

 

Unauthorised use or possession of a firearm

A firearms licence is an authority to possess a firearm on certain terms or for a certain purpose. For example, for vermin control on a rural property. 

It is an offence to possess or use a firearm if you do not have a licence to do so OR if the firearm is possessed or used 'outside the scope' of the licence terms or purpose.  The maximum penalty for this offence depends on the kind of firearm:

  • A pistol or prohibited firearm – 14 years’ imprisonment – s.7 Firearms Act 1996
  • Any other firearm – 5 years’ imprisonment – s.7A Firearms Act 1996

If you have been charged with this offence, then the prosecution must establish certain elements of the offence beyond reasonable doubt:

1. That you were in possession of or using a firearm AND

2. You did not have a licence OR

3. You had a firearms licence but you were using the firearm for a reason other than the genuine reason you gave for possessing or using the firearm in the first place OR

4. You had a firearms licence but you were using or possessing the firearm in a way that contravenes a condition of your licence

However, in aggravated circumstances, the offence carries a maximum penalty of 10 years’ imprisonment – s.51D Firearms Act 1996.

'Circumstances of aggravation' involve a person being in possession of more than 3 firearms where:

  • The firearms are not registered
  • An unregistered firearm that is a pistol
  • The person is not authorised by a licence or permit to possess the firearms

 

Possess prohibited weapon

It is an offence to possess or use a prohibited weapon unless the person is authorised to do so by a permit (Maximum penalty of 14 years’ imprisonment – s.7(1) Weapons Prohibition Act 1998).

In the legislation, there is a list of prohibited weapons (sch.1 Weapons Prohibition Act 1998). Some of the weapons on this list include certain types of knives, crossbows, bombs or grenades, anti-personnel spray and silencers.

If you have been charged with this offence, then the prosecution must establish certain elements of the offence beyond reasonable doubt:

1. That you were in possession of or using a prohibited weapon AND

2. You did not have a permit OR

3. You had a permit but you were using the prohibited weapon for a reason other than the genuine reason you gave for possessing or using the weapon in the first place

 

Safe keeping of firearms

A person who possesses a firearm must take all reasonable precautions to ensure:

1. Its safe keeping

2. That it is not lost or stolen

3. That it does not come into the possession of a person who is not authorised to possess the firearm

It is an offence to fail to do the above – s.39 Firearms Act 1996. Again, the maximum penalty for this offence depends on the type of firearm in question:

  • A pistol or prohibited firearm – 2 years’ imprisonment and/or a $5,500 fine (50 penalty units)
  • Any other firearm – 12 months’ imprisonment and/or a $2,200 fine (20 penalty units)

 

Possession of unregistered firearm in a public place

Possession of unregistered firearm in a public place carries a maximum penalty of 10 years’ imprisonment – s.93I(1) Crimes Act 1900. If you have been charged with this offence, then the prosecution must establish certain elements of the offence beyond reasonable doubt:

1. That you possessed an unregistered firearm

2. That you were in a public place

3. That you were not authorised under the Firearms Act 1996 to possess the firearm

However, in aggravated circumstances, the offence carries a maximum penalty of 14 years’ imprisonment – s.93I(2) Crimes Act 1900.

'Circumstances of aggravation' involve the possession of either:

  • More than one unregistered firearm
  • An unregistered firearm that is a pistol
  • An unregistered firearm that is a prohibited firearm 

 

Ideally you should speak to your solicitor before you speak to police – you need advice as to your rights and obligations so that you are more comfortable with the processes and understand what is happening. Only then can you make the best decisions.

 

YOUR NEXT STEPS WHEN YOU ARE CHARGED WITH FIREARMS OR WEAPONS TYPE OFFENCE

1. Contact us. Early contact with Tankard’s Law is extremely important, so that you can start to take the right actions immediately. Speaking to an expert about whether the item is in fact a firearm or prohibited weapon. Having our staff liaise with the Firearm's Registry to ascertain the status of your licence or certificate of registration. Obtaining advice in relation to making a statement to police or not. You need early advice.  

2. Gather material immediately. You should immediately type out a history of your knowledge of the relevant item AND your version of what occurred and provide this to us – details get lost in your memory over time. This step is crucial. Immediately searching for any relevant paperwork - firearms audits, certificates, compliance information from safe manufacturers. Finding proof of purchase and speaking to the person who sold you the item. You should think about who else knows the details of the history of the item coming into your possession and have them write a statement to give to your lawyer.

3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you.

If you have a question about the processes involved in arrest or charge, or attending court and what charges you face or need help understanding what the police are saying to you, contact us by phone on 02 6921 3220 or make a website enquiry.  We will get back to you promptly.

Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal offences since 1998. There is no one better qualified to get behind you when you need it most.