The Firearms Act 1996
This Act was introduced as part of a National campaign for stricter firearms control following the Port Arthur Massacre. Offences in this Act include the unauthorised possession or use, purchase, manufacture and supply of firearms.
Unauthorised possession or use
Section 7A of the Firearms Act 1996 provides that: “A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit.” The maximum penalty for this offence is 5 years imprisonment.
If the Police find you to be in possession of a firearm for which you cannot produce a licence or permit they can charge you with an offence under Section 7A of the Firearms Act. If you have been charged or expect to be charged with this serious offence contact us immediately.
While the unauthorised possession of legal firearms carries a maximum penalty of 5 years, the unauthorised possession of a prohibited firearm carries a maximum penalty of 14 years imprisonment (Section 7(1)).
The following circumstances around the possession or use of a weapon make the offence objectively more serious:
- If the possession or use of the weapons is for the carrying out of a crime
- If the unauthorised weapon is loaded and unsecured in a public area
- If the weapon is concealed, for example a key-ring pistol, which is not capable of lawful use
- If there is no innocent explanation given for the possession of the pistol and the failure to obtain a license
- If the firearm is loaded with live rounds of ammunition
- If the unauthorised possession of the weapon enables others in the community to make use of the firearms (even though that may have been unintended)
- If the loaded pistol is pointed at somebody
- If the loaded pistol is pointed at somebody by someone who is intoxicated, aggressive and suffering from a lack of judgement
What is considered necessary to establish ‘possession’?
The definition of ‘possession’ is very broad: Section 4A of the act defines possession as a firearm which is “in or on any premises owned, leased or occupied by, or in the care, control or management of, the person”. What this means is that if a firearm is found in your house it is considered to be in your possession. Unless it was:
- placed in or on, or brought into or onto the premises (premises means any place, vehicle, vessel or aircraft) by or on behalf of a person who was lawfully authorised by or under this act to possess the firearm, or
- the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or
- on the evidence before the court, the person was not in possession of the firearm.
Section 51D of the Firearms Act 1996
This section prohibits the unauthorised possession of three or more firearms if the firearms are not registered and the person is not licensed to possess them. This offence carries a maximum of 10 years imprisonment.
If any or one of the three firearms is a prohibited firearm or pistol then under Section 51D 2 a maximum penalty of 20 years imprisonment applies. In 1998 the Crimes (Sentencing Procedure) Amendment Act 2007 introduced a standard non-parole period of 10 years for this offence.
What is the difference between an unlicensed firearm and a prohibited firearm?
Some weapons can be legally licensed for sporting, farming or other legitimate purposes. Other weapons, by their nature, are illegal and can never be licensed. If you are found to be in the possession of an illegal or prohibited weapon it is taken to be that there is no innocent explanation for its use. For example, there is no legitimate purpose for possessing a sawn-off shotgun. Similarly a loaded firearm which has had its serial number removed will be taken to be intended for criminal purposes.
What are prohibited pistols?
“Pistol” and “prohibited pistol” are defined separately in Section 4 and 4C of the Firearms Act 1996. The calibre size and length of the pistol are the main difference between them. A prohibited pistol under the Act can be any of the following kinds of pistols:
a) a pistol with a calibre of more than 38 inch
b) a self-loading pistol with a barrel length of less than 120 mm
c) a revolver with a barrel length of less than 100 mm
Prohibited pistols do not include black powder pistols.
Any pistol which has been altered or modified in any way is automatically considered to be a prohibited weapon.
Purchase, sale and manufacture of firearms
Part 6 of the Firearms Act deals with the unauthorised purchase, sale and manufacture of firearms. Part 6 also deals with offences such as the shortening or converting of firearms and licence-related offences.
The number and quality of firearms purchased or sold is relevant to the seriousness of the offence.
The unauthorised sale of a prohibited firearm or pistol under s 51(1A) or (2A), and selling firearms on an ongoing basis (on three or more occasions within 12 months) under s 51B, each carries a maximum penalty of 20 years. A standard non-parole period of 10 years was also introduced for each of these offences on 1 January 2008.
The matters relevant to an assessment of the seriousness of the offences include: the number of firearms, the number of firearms which are prohibited or are pistols, the nature and type of the firearms, the purpose for possessing the firearms, whether there is evidence showing any relationship between the possession of the firearms with the drug industry, the location of the property and the security under which the firearms are kept.
It is an aggravating feature of the offence if a person sells a weapon with a silencer and does not have any concern about the identity of the purchaser since “[a silencer] is quintessentially a feature of weapons used in violent crimes”. R v Howard [2004] NSWCCA 348 at [65].
If you have been charged with an offence under the Firearms Act contact North Shore Criminal Law on (02) 9955 2298 during office hours or 0400 44 6424 (24 hour emergency service) for expert legal advice.
