FIREARMS & PROHIBITED WEAPONS

The Firearms Act 1996 (NSW) regulates the unauthorised possession, use, purchase, manufacture and supply of firearms in NSW. “This legislation puts the public’s right to safety before the privilege of gun ownership.” (NSW, Legislative Assembly, Debates, 19 June 1996, p 3204.)

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There are many people in NSW and Australia who own firearms and weapons for hunting and other recreational activities. Those persons have a valid firearms licence or permit to have possession of and use those weapons or firearms. Those firearms and weapons must also be registered. If you do not have a valid licence or permit, or if you have a firearm that is not registered, you would be committing a criminal offence and you could be charged by police.

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Section 7A provides: “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 is 5 years imprisonment.

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Section 7(1) provides: “A person must not possess or use a prohibited firearm or pistol unless the person is authorised to do so by a licence or permit”. The maximum penalty is 14 years imprisonment.

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Section 36(1) provides: “A person must not supply, acquire, possess or use a firearm that is not registered”. The maximum penalty is 14 years imprisonment.

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The offences under sections 7A, 7(1) and 36(1) are Table 2 indictable offences that are to be dealt with summarily unless the prosecutor elects otherwise: Schedule 1, Table 2 Part 4 Criminal Procedure Act 1986.

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What constitutes "possession"?

Section 4A(1) of the Firearms Act 1996 provides “Without restricting the meaning of the word "possession" , for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person, unless the court is satisfied that:

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(a) the firearm was placed in or on, or brought into or on to, the premises by or on behalf of a person who was lawfully authorised by or under this Act to possess the firearm, or

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(b) the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or

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(c) on the evidence before it, the person was not in possession of the firearm.

   

In effect, an offender would be deemed to have possession of the firearm or weapon of he or she had control of the item and also had knowledge of the firearm or weapon being in their control.

 

Are imitation or toy firearms illegal?                    

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In short, the answer is yes. Whether an imitation or toy firearm falls within the statutory definition of a firearm or weapon for the purpose of an offence under the Firearms Act is determined by reference to the use and intention of the accused at the time of possessing the toy.

 

In the recent case of Darestani v R [2019] NSWCCA 248, the CCA has held that when deciding whether something is an imitation firearm, the use and intention of the accused at the time of possession is relevant to the question of whether a toy falls within the statutory definition for the purpose of the offence. One issue which became important in the appeal proceedings relates to the specific point in time at which the Crown had been required to prove possession. In this particular case, it became clear the relevant point was when the applicant was arrested, and not the time at which he produced one of the firearms in the car yard.

 

One other dispute between the parties was how to read section 4D(4) of the Firearms Act 1996 which relevantly provides: ‘an imitation firearm does not include any such object that is produced and identified as a children’s toy.’ The dispute was whether that provision drew attention to the purpose for the manufacture of the object and its intrinsic qualities, or the circumstances in which the object was being used at the time of possession.

 

The Court found the circumstances at the time of possession are relevant. It gives rise to consideration of matters intrinsic to the object, its use, and the intention of the person using it (if the object is being used at the time it is asserted to be in a person’s possession). The use, and the intention which accompanied the use, would identify the plastic rifle otherwise than as a children’s toy.

 

As with any criminal offence, the prosecution must prove all the elements of the offence beyond a reasonable doubt. If you have a defence available, the prosecution must negate that defence beyond reasonable doubt if the Court is to find you guilty. If you are charged with a firearms and weapons offence, please contact KF Lawyers Australia to arrange for a consultation to discuss potential defences and range of sentences that are available in your situation.