Firearms and weapon offences are extremely serious in nature. There is a range of offences that vary from the custody of a knife to firing at a dwelling house or possession of three or more prohibited firearms.

If charged with a firearms offence, there is often potential for a prison sentence if found guilty. Our team has significant experience expertise in dealing with these offences.

 

If charged with a firearms offence, there is often potential for a prison sentence if found guilty. Our team has significant experience expertise in dealing with the following offences.

  • Custody of a knife in a public place.
  • Possess prohibited weapon.
  • Possess a prohibited firearm.
  • Cause danger with a firearm.
  • Fire at a dwelling house or building.
  • Possession of three or more prohibited firearms.

CUSTODY OF A KNIFE IN A PUBLIC PLACE

THE OFFENCE:

Section 11C (1) of the Summary Offences Act 1998 (NSW) provides an offence of having custody of a knife in a public place. The prosecution must prove the following elements beyond a reasonable doubt in order to convict a person of this offence:

  1. That you had a knife in your custody
  2. At the time you had the knife, you were in a public place or a school; and
  3. You had the knife without a reasonable excuse.

I AM NOT GUILTY; HOW CAN I BEAT THE CHARGE?

The three most common ways a person will be found not guilty of custody of a knife in a public place.

  1. You didn’t have the knife in your custody.
  2. You weren’t in a public place at the time of the offence
  3. You had a reasonable excuse for possessing the knife

WHAT IS A REASONABLE EXCUSE?

The defence of a reasonable excuse can be used in many different circumstances. A person can be found not guilty of this offence if they have a reasonable excuse for having the knife in their custody. Multiple different examples include:

  • Used for the purpose of lawful employment, education, training or even recreational purposes in some circumstances.
  • Used for the preparation of meals.
  • Display for retail or trade purposes

POSSESS PROHIBITED WEAPON

THE OFFENCE

Section 7(1) of the Weapons Prohibition Act 1998 (NSW) provides an offence of possessing a prohibited weapon. The prosecution must prove the following elements beyond a reasonable doubt in order to convict a person of this offence:

  1. You knowingly possessed a weapon.
  2. That weapon was a prohibited weapon under the Weapons Prohibition Act 1998 (NSW).
  3. You did so either:
    1. Without a permit; OR
    2. Had the requisite permit, however, did not use the prohibited weapon in connection with the purpose established by the person as being the genuine reason for possessing or using the prohibited weapon; OR
    3. Contravenes a condition of the permit

I AM NOT GUILTY; HOW CAN I BEAT THE CHARGE?

The most common ways a person will be found not guilty of possessing a prohibited weapon are as follows:

  1. You didn’t have knowledge of the existence of the weapon.
  2.  You didn’t have exclusive possession of the weapon
  3. You possessed the weapon with a permit.

WHAT IS A PROHIBITED WEAPON?

Schedule 1 of the weapons prohibition act 1998 (NSW) provides a comprehensive list of property which is classed as a prohibited weapon. Many people charged with prohibited weapon offences are surprised that certain items are considered prohibited weapons upon getting advice. Some examples of prohibited weapons include:

  • Knives (including flick knives, ballistic knives, trench knives, butterfly knives and more)
  • Bombs, grenades, rockets or missiles.
  • Spearguns, cross-bows, slingshots, blow-guns, darts, whips, Kung fu sticks, nunchakus, batons, tasers, knuckle dusters, anti-personal spray.
  • Handcuffs, silencers, tyre deflation devices, and laser pointers

POSSESS PROHIBITED FIREARM

THE OFFENCE:

Section 7(1) of the Firearms Act 1996 (NSW) provides an offence of possessing a prohibited firearm or pistol. The prosecution must prove the following elements beyond reasonable doubt to convict a person of this offence:

  1. You knowingly possessed a firearm or pistol
  2. That pistol or firearm was a prohibited firearm under the Firearms Act 1996 (NSW)
  3.  You did so either:
    1. Without a license; OR
    2. Had the requisite license, however, did not use the prohibited weapon in connection with the purpose established by the person as being the genuine reason for possessing or using the prohibited weapon; OR
    3. Contravenes a condition of the license

I AM NOT GUILTY; HOW CAN I BEAT THE CHARGE?

The most common ways a person will be found not guilty of possessing a prohibited firearm are as follows:

  1. You didn’t have knowledge of the existence of the firearm.
  2. You didn’t have exclusive possession of the firearm.
  3. You possessed the firearm with a permit.

WHAT IS A PROHIBITED FIREARM?

Schedule 1 of the Firearms Act 1996 (NSW) provides a comprehensive list of property that is classed as a prohibited weapon. Some examples of prohibited firearms include:

  • Any machine gun, sub-machine gun or other firearms capable of propelling projectiles in rapid succession during one pressure of the trigger.
  • Any self-loading rifle.
  • Any self-loading or pump-action shotgun, leaver action shotgun with a magazine capacity of more than 5 rounds.
  • Self-loading shotgun of the kind designed or adapted for military purposes
  • Any firearm that replicates any of the above firearms

CAUSE DANGER WITH A FIREARM

THE OFFENCE:

Section 93G of the Crimes Act 1900 (NSW) provides an offence of causing danger with a firearm or speargun in or near a public place. The prosecution must prove the following elements beyond reasonable doubt to convict a person of this offence:

  1. You knowingly possessed a loaded firearm or loaded speargun either:
    1.  In a public place; OR
    2. Near a public place; OR
    3. In any other place as to endanger the life of another person
  2. You did any of the following:
    1.  Fired a firearm or speargun in or near the public place; or
    2. Carried or fired a firearm or speargun in a manner likely to injure a person; or
    3. Carried or fired a firearm in a manner likely to endanger the safety of any person or property with disregard for the safety of any person.

I AM NOT GUILTY; HOW CAN I BEAT THE CHARGE?

The most common ways a person will be found not guilty of this offence are as follows:

  1. You didn’t possess a loaded firearm or speargun.
  2. You didn’t fire a firearm or speargun or cause danger to another person
  3. If you did the act for a lawful purpose or had a reasonable excuse

WHAT IS A LOADED FIREARM?

A firearm is defined in the same way as the Firearms Act 1996 (NSW) as described above. It would be considered loaded where there is ammunition in its chamber, barrel or in any magazine in a position that the ammunition can be fitted into the chamber or barrel of the firearm.

FIRING AT DWELLING HOUSES OR BUILDINGS

THE OFFENCE:

Section 93GA (1) of the Crimes Act 1900 (NSW) provides an offence of firing a firearm at a dwelling-house or other building with reckless disregard for the safety of any person.

Section 93GA(1A) & (1B) of the Crimes Act 1900 (NSW) provide two aggravated offences where the firing is done either during a public disorder or in the course of organised criminal activity.

The prosecution must prove the following elements beyond a reasonable doubt to convict a person of this offence:

  1. You fired a firearm
  2. At a dwelling house or other building
  3. With reckless disregard for the safety of another person
  4. (for the section 93GA(1A) offence) the firing was done during a public disorder
  5. (For the section 93GA(1B) offence) the firing was done in the course of organised criminal activity.

I AM NOT GUILTY; HOW CAN I BEAT THE CHARGE?

The most common ways a person will be found not guilty of this offence are as follows:

  1. You didn’t fire a firearm.
  2. The firearm was not fired at a dwelling house or building.

POSSESSION OF THREE OR MORE PROHIBITED FIREARMS OR PISTOLS

THE OFFENCE:

Section 51D (1) of the Firearms Act 1996 (NSW) prohibits the possession of three or more firearms if they are not registered to the person and the person is not licensed to possess them.

Section 51D (2) of the Firearms Act 1996 (NSW) provides an aggravated offence where one or more of the firearms is a prohibited firearm or pistol.

The prosecution must prove the following elements beyond reasonable doubt to convict a person of this offence:

  1. The person knowingly possessed three or more firearms; and
  2. Those firearms are not registered to the person; and
  3. The person is not licensed to possess them; and
  4. (For the section 51D(2) offence) one of the three firearms are a prohibited firearm or a pistol.

I AM NOT GUILTY; HOW CAN I BEAT THE CHARGE?

The most common ways a person will be found not guilty of this offence are as follows:

  1. The person didn’t have knowledge of the firearms
  2. The firearms were registered to the person
  3. The person had a license to possess the firearms

FIREARM VS PROHIBITED FIREARM:

A firearm is defined as including a gun or other weapon that is capable of propelling a projectile by an explosive but does not include a paintball marker (Section 4 Firearms Act 1996 (NSW). A prohibited firearm is a much more concise list of specific types of guns including submachine guns, shotguns etc which are expressly prohibited by Schedule 1 of the Firearms Act 1996 (NSW).

I’M GUILTY, WHAT NEXT?

If you are guilty of any of the above offences, your specialist lawyer at Australian Criminal Defence will help prepare your defence including references, expert reports, apology letters, and evidence of rehabilitation. The next step is that you will be sentenced. The table below shows the relevant penalty for each offence. For all offences dealt with in the local court, the maximum penalty is 2 years imprisonment. For matters dealt with in the District or Supreme Court (on indictment), the maximum penalty is as displayed below.

Offence Summarily dealt with Dealt with on Indictment
Custody of a knife 2 years imprisonment; AND/OR

$2,200 fine

N/A
Possess Prohibited weapon 2 years imprisonment; AND/OR

$5,500 fine

14 years imprisonment

(Non-parole period of 3 years)

Possess prohibited firearm 2 years imprisonment; AND/OR

$5,500 fine

14 years imprisonment
Cause danger with a firearm 2 years imprisonment; AND/OR $5,500 fine 10 years imprisonment
Fire firearm at dwelling house or building N/A 14 years imprisonment

(Non-parole period of 5 years)

Aggravated fire firearm at dwelling house or building N/A 16 years imprisonment (non-parole period of 6 years)
Possess three or more firearms 2 years imprisonment; AND/OR

$5,500 fine

10 Years imprisonment
Aggravated possession of three or more firearms N/A 20 years Imprisonment (non-parole period of 10 years)

The maximum penalties are reserved for the “worst category” of offenders (Veen v The Queen (No 2) (1988) 164 CLR 465 at 478) and are not commonly utilised by the court. A court has the discretion to sentence an offender in accordance with the Crimes (Sentencing Procedure) Act 1998 (NSW).

DEFENCES

DURESS

The defence of duress is available in circumstances where the accused person is threatened in a way where they are forced to commit a crime against their will. It requires four things to be shown, once the defence is raised, the prosecution must disprove beyond reasonable doubt that the defendant was not acting under duress:

  1. An actual threat was made to the accused
  2. The threat was serious enough to justify the accused’s actions
  3. The threat was acting on the mind of the accused at the time of the offence
  4. The threat was continuing

NECESSITY

The defence of necessity is available in circumstances where the accused is incited in some way (often by a threat or identification of potential harm) to break the law to avoid even more dire consequences. The defendant must show the following (R v Loughnan [1981] VR 443 at [448]:

a) The criminal act must have been done in order to avoid consequences of irreparable evil upon the accused or others whom they were bound to protect
b) The accused must honestly have believed on reasonable grounds that they were placed in a situation of imminent peril; and
c) The acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided

SELF DEFENCE

The accused must show two things, firstly that there is a reasonable possibility that the accused genuinely believed in the circumstances their conduct was necessary for any of the following reasons:

a) To defend themselves or another person
b) To prevent or terminate the unlawful deprivation of their liberty
c) To protect property from unlawful taking, destruction, damage or interference, or
d) To prevent criminal trespass to any land or premises or to remove a person committing any such trespass

Secondly, the accused’s response must be reasonable in the circumstances as they perceived them taking into consideration things such as the circumstances of the encounter, the age, gender, health etc. of the defendant/alleged victim. Once self-defence is raised, the prosecution must prove beyond reasonable doubt that the accused did not act in self-defence.

Firearm & Weapon Offence Case Studies

  • Our client was charged with the possession of a prohibited firearm. The firearm was located in his house. This charge carries a maximum sentence of 14 years imprisonment. Our client denied the allegation. The matter proceeded to trial at the Sydney District Court.  After a five day trial the jury delivered a NOT GUILTY verdict.
  • Our client plead guilty to one count of possession of a prohibited firearm. Our client was sentenced at the Parramatta District Court. Our team prepared and  presented a compelling subjective case for our client to the court. Our client did not receive a full time term of imprisonment.

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