Firearm Offences
Being charged with a firearm offence can be challenging to navigate. It is important to employ reputable legal assistance for such matters. If yourself or someone you know is facing charges for a firearm offence, we highly recommend contacting our experienced team of criminal lawyers. For more information and advice, please contact us at (02) 8060 9799.
Firearm Offences
Unauthorised Possession of Firearms
A person must hold a firearms licence or be permitted to legally possess or use a firearm. If a person possesses or uses a firearm without a licence or permit, that person is committing an offence as per section 7A of the Firearms Act 1996 (NSW).
If the firearm in question is prohibited, the accused is liable to harsher penalties per section 7 of the Firearms Act 1996 (NSW).
If a person possesses a firearm or a prohibited firearm in aggravated circumstances, the penalty can increase per section 51D of the Firearms Act 1996 (NSW).
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You possessed a firearm
You did not hold an appropriate firearms licence or permit
What Constitutes a Firearm Under the Law?
Section 4 of the Firearms Act 1996 (NSW) outlines what constitutes a firearm. It states that a firearm means a gun or other weapon, that is (or at any time was) capable of propelling a projectile utilising an explosive, and includes a blank fire firearm, or an air gun. This includes rifles, machine guns, and shotguns.
What are Aggravating Circumstances?
Aggravating circumstances are when you are found with 3 or more firearms in your possession and you do not hold an appropriate firearms licence for any of the firearms.
Maximum Penalties
Unauthorised possession of a firearm
The maximum penalty is 5 years imprisonment.
Unauthorised possession of a firearm in aggravated circumstances
The maximum penalty is 10 years imprisonment.
Unauthorised possession of a prohibited firearm
The maximum penalty is 14 years imprisonment.
Unauthorised possession of a prohibited firearm in aggravated circumstances
The maximum penalty is 20 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on your circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to these charges can include:
You did have a licence that permitted you to possess the firearm
The firearm does not fall within the definition of a prohibited firearm
You did not know or were not reasonably expected to know that the firearm was in your possession, including in your house or car
The firearm was brought to your house or car by someone that was lawfully authorised to possess such a firearm
You were defending yourself or another person or your property (Self-Defence)
You were coerced or threatened to act a certain way under the circumstances (Duress)
Your actions were necessary to prevent serious injury (Necessity)
Unregistered Firearms
Under section 36 of the Firearms Act 1996 (NSW), it is an offence to supply, acquire, possess, or use a firearm that is not registered. The penalty can increase in aggravating circumstances, that is, if the firearm is a pistol or a prohibited firearm or if there is more than one unregistered firearm in your possession.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You supplied, acquired, possessed, or used a firearm
That was not registered
Maximum Penalties
Pistol or prohibited firearm
The maximum penalty is 14 years imprisonment.
In any other case
The maximum penalty is 5 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on your circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to these charges can include:
Section 36(2): You did not know, or could not reasonably be expected to have known, that the firearm concerned was unregistered, and you were not the owner of the firearm at the time of the alleged offence.
Section 36(3): A licensed firearms dealer does not commit this offence if an application for registration of the firearm is made within 24 hours after acquiring or taking possession of the firearm.
Section 36(4): A person who is a resident of another State or Territory does not commit this offence if the firearm is registered under a law in force in that State or Territory.
You were defending yourself or another person or your property (Self-Defence)
You were coerced or threatened to act a certain way under the circumstances (Duress)
Your actions were necessary to prevent serious injury (Necessity)
You were unaware that the firearm had to be registered (Honest and Reasonable Mistake of Fact)
Possessing an Unregistered Firearm in Public Place
Under section 93I of the Crimes Act 1900 (NSW), it is an offence to possess an unregistered firearm in a public place. The penalty can increase in aggravating circumstances, that is, if the firearm is a pistol or a prohibited firearm or if there is more than one unregistered firearm in your possession.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You possessed an unregistered firearm in a public place, and
It is not authorised under the Firearms Act 1996 (NSW) to possess the firearm.
Maximum Penalties
In aggravating circumstances
The maximum penalty is 14 years imprisonment.
In any other case
The maximum penalty is 10 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on your circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to these charges can include:
Section 36(2): You did not know, or could not reasonably be expected to have known, that the firearm concerned was unregistered, and you were not the owner of the firearm at the time of the alleged offence.
Section 36(3): A licensed firearms dealer does not commit this offence if an application for registration of the firearm is made within 24 hours after acquiring or taking possession of the firearm.
Section 36(4): A person who is a resident of another State or Territory does not commit this offence if the firearm is registered under a law in force in that State or Territory.
You were defending yourself or another person or your property (Self-Defence)
You were coerced or threatened to act a certain way under the circumstances (Duress)
Your actions were necessary to prevent serious injury (Necessity)
You were unaware that the firearm had to be registered (Honest and Reasonable Mistake of Fact)
Safe Keeping of Firearms
If you have a firearm, you must take responsibility to ensure that it is kept safe. Under section 39 of the Firearms Act 1996 (NSW), there are general requirements that you need to abide by when you own a firearm. Under sections 40 and 41 of the Firearms Act 1996 (NSW) there are specific requirements under which licence category you hold, either category A and B licences or category C, D, and H licences. If the firearm is a prohibited firearm or pistol, you may be liable to harsher penalties.
If You Possess a Firearm, You Must Take All Reasonable Precautions to Ensure:
It is kept in a safe place
That it is not stolen or lost
That it does not come into the possession of a person who is not authorised to possess the firearm
If you do not follow any of the following requirements you may be found guilty under section 39 of the Firearms Act 1996 (NSW).
Maximum Penalties
Section 39: General Requirement
The maximum penalty carried for a prohibited firearm or pistol is a fine of $5,500 or two years imprisonment.
The maximum penalty in any other case is $2,200 or twelve months imprisonment.
Section 40: Category A or B
The maximum penalty is a fine of $2,200 or twelve months imprisonment.
Section 41: Category C, D or H
The maximum penalty is a fine of $5,500 or two years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on your circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to these charges can include:
You do not have to comply with these requirements if the Commissioner has provided alternative arrangements for the storage of firearms that is of a standard that is not less than the legislative requirements.
Honest and Reasonable Mistake – you honestly believed that you complied with the requirements set out in this statute. This was a reasonable belief considering all circumstances as determined by the court.
Causing Danger with Firearm or Spear Gun
Causing danger with a firearm or spear gun is an offence under section 93G of the Crimes Act 1900 (NSW).
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You possessed a loaded firearm or loaded spear gun in a public place, or in any other place to endanger the life of any other person, or
You fired a firearm or spear gun in or near a public place, or
You carried or fired a firearm or spear gun in a manner likely to injure, or endanger the safety of, yourself or any other person or any property, or with disregard for the safety of yourself or any other person.
What Constitutes a Loaded Firearm or Spear Gun?
A firearm is loaded if there is ammunition in its chamber or barrel, or in any magazine or other device which is in such a position that the ammunition can be fitted into its chamber or barrel by operation of some other part of the firearm. A spear gun is to be regarded as being loaded if a spear, or an instrument or things like a spear, is fitted to it.
Maximum Penalties
The maximum penalty is 10 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on your circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
A possible defence available to this charge can include:
Section 93G(3): You had a reasonable excuse for possessing or doing it or possessed it or did it for a lawful purpose.
You were defending yourself or another person or your property (Self-Defence)
You were coerced or threatened to act a certain way under the circumstances (Duress)
Your actions were necessary to prevent serious injury (Necessity)
Trespassing with a Firearm or Spear Gun
Under section 93H(1) of the Crimes Act 1900 (NSW), it is an offence to enter any building or land whilst in possession of a firearm, imitation firearm, spear gun, or imitation spear gun.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You entered a building or land and
You had in your possession either a firearm, imitation firearm, spear gun, or imitation spear gun.
You Will Not be Charged with this Offence if One of the Following Reasons Applies to You:
You are the owner or occupier of that area or had permission from the owner or occupier or
You had a reasonable excuse to enter the area or
You entered the area for a lawful purpose
The onus of proving these matters lies with you as the defendant. This may be overwhelming and our team can help you with this process.
Examples of a Lawful Purpose or Reasonable Excuse
You had approved authorisation to hunt or cull animals
You were a police officer in the execution of your duty
You did so during a cultural or sporting event
You did so for construction or building purposes
What is an Imitation Firearm or Imitation Spear Gun?
An imitation firearm or imitation spear gun is any object that substantially duplicates the appearance of a real firearm or spear gun but is not a real firearm or spear gun. This is regardless of its colour, weight, composition, or the presence or absence of any moveable parts.
Maximum Penalties
The maximum penalty is 5 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on your circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to this charge can include:
Honest and Reasonable Mistake – You entered the land with a mistaken belief that you were not trespassing. This was a reasonable belief considering all circumstances as determined by the court.
You did not know that you were in possession of a firearm or spear gun.
You were defending yourself or another person or your property (Self-Defence)
You were coerced or threatened to act a certain way under the circumstances (Duress)
Your actions were necessary to prevent serious injury (Necessity)
Dangerous Use of a Firearm or Spear Gun
Under section 93H(2) of the Crimes Act 1900 (NSW), it is an offence to fire a firearm or spear gun into any building or onto any land.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You fired a firearm or spear gun
You did so in or into any building or on to any land
You Will Not be Charged with this Offence if One of the Following Reasons Applies to You:
You are the owner or occupier of that area or had permission from the owner or occupier or
You had a reasonable excuse to enter the area or
You entered the area for a lawful purpose
The onus of proving these matters will be on you as the defendant. This may be overwhelming and our experienced criminal lawyers can help you with this process.
Examples of a Lawful Purpose or Reasonable Excuse
You had approved authorisation to hunt or cull animals
You were a police officer in the execution of your duty
You did so during a cultural or sporting event
You did so for construction or building purposes
Maximum Penalties
The maximum penalty is 10 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on your circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to this charge can include:
You were defending yourself or another person or your property (Self-Defence)
You were coerced or threatened to act a certain way under the circumstances (Duress)
Your actions were necessary to prevent serious injury (Necessity)
Firing at Dwelling Houses or Buildings
Under section 93GA of the Crimes Act 1900 (NSW), it is an offence to fire a firearm at a dwelling-house or other building with reckless disregard for the safety of any person. You may be charged with harsher penalties if you also commit this offence during a public disorder or an organised criminal activity.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You fired a firearm and
It was fired at a house or other building and
You fired it with reckless disregard for the safety of others
The prosecution does not have to prove that a person was in actual danger by the firing of the firearm. This means you may still be charged with this offence even if there was no one inside the house or building.
Maximum Penalties
Section 93GA(1): Fired a firearm at a dwelling-house or other building with reckless disregard for the safety of others
The maximum penalty is 14 years imprisonment.
Section 93GA(1A): Fired a firearm at a dwelling-house or other building with reckless disregard for the safety of others during a public disorder
The maximum penalty is 16 years imprisonment.
Section 93GA(1B): Fired a firearm at a dwelling-house or other building with reckless disregard for the safety of others during an organised criminal activity
The maximum penalty is 16 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on your circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to this charge can include:
You were defending yourself or another person or your property (Self-Defence)
You were coerced or threatened to act a certain way under the circumstances (Duress)
Your actions were necessary to prevent serious injury (Necessity)
Possession of Dangerous Articles Other than Firearms
It is an offence under section 93FB of the Crimes Act 1900 (NSW) to be in possession of a dangerous article other than a firearm in a public place.
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You possessed a dangerous article other than a firearm
You were in a public place at the time you were in possession of the dangerous article
What is a Dangerous Article?
Anything capable of discharging (by any means) any irritant matter in liquid, powder, gas, or chemical form or any dense smoke, or
Anything capable of discharging (by any means) any substance capable of causing bodily harm, or
A fuse capable of use with an explosive or a detonator, or
A detonator, or
A distress signal, or distress flare that operates by emitting a bright light.
Maximum Penalties
The maximum penalty is a fine of 50 penalty units ($5,500) and/or 2 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on your circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to this charge can include:
Section 93FB(2): You had a reasonable excuse for possessing the dangerous article or you possessed it for a lawful purpose.
Section 93FB(3), (4): You possessed the dangerous article for self-defence. This was a reasonable purpose considering all circumstances as determined by the court. The court will consider:
- the immediacy of the perceived threat and
- the circumstances, such as the time and location, in which the thing was possessed, and
- the type of thing possessed, and
- your age, characteristics, and experiencesYou were coerced or threatened to act a certain way under the circumstances (Duress)
Your actions were necessary to prevent serious injury (Necessity)
Possess, Supply or Manufacture of Explosives
The possession, supply or making of explosives is an offence under section 93FA of the Crimes Act 1900 (NSW).
Possessing an explosive in a public place
Merely possessing an explosive is an offence under section 93FA(1) of the Crimes Act 1900 (NSW). This section states that “a person who possess an explosive in a public place is guilty of an offence”.
Possessed, supplied, or manufactured an explosive
Section 93FA states that “a person who possesses, supplies or makes an explosive, under circumstances that give rise to a reasonable suspicion that the person did not possess, supply or make the explosive for a lawful purpose, is guilty of an offence.”
What if I Have a Reasonable Excuse for Possessing, Supplying or Making Explosives?
A defence against the two offences listed above is outlined under section 93FA(4) of the Crimes Act 1900 (NSW). It states that a person is not guilty of “possessing or making an explosive if the person satisfies the court that he or she had a reasonable excuse for doing so or did so for a lawful purpose.”
Maximum Penalties
Possessing an explosive in a public place
The maximum penalty is 5 years imprisonment.
Possessed, supplied, or manufactured an explosive
The maximum penalty is a fine of 50 penalty units ($5,500) and/or 3 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on your individual circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available in relation to these charges can include:
Section 93FA(4): You had a reasonable excuse for possessing or doing so or did so for a lawful purpose
You were coerced or threatened to act a certain way under the circumstances (Duress)
Your actions were necessary to prevent serious injury (Necessity)
Armed with Intent to Commit an Indictable Offence
Being armed with intent to commit an indictable offence is an offence found under section 114(1) of the Crimes Act 1900 (NSW)
What Must the Prosecution Prove?
The Prosecution must prove these elements beyond a reasonable doubt:
You were armed with any weapon, or instrument, with intent to commit an indictable offence
It was in your possession, without lawful excuse, any implement of housebreaking or safe breaking, or any implement capable of being used to enter or drive or enter and drive a conveyance
Your face blackened or otherwise disguised or had in your possession the means of blacking or otherwise disguising your face, with intent to commit an indictable offence
Entered or remained in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence in or upon the building
What Does Conveyance Mean?
According to section 114(2) of the Crimes Act 1900 (NSW), conveyance means any cab, carriage, motor car, caravan, trailer, motor lorry, omnibus, motor or other bicycles, or any ship, or vessel, used in or intended for navigation. The term drive shall be construed accordingly.
Maximum Penalties
The maximum penalty in the Local Court is 2 years imprisonment. The maximum penalty in the District Court is 7 years imprisonment.
The maximum penalty is reserved for cases that are the most serious. The penalty you will receive will depend on your circumstances and the nature of your particular offence. In NSW, a court can impose any of the following penalties:
Fine
Dismissal Without Conviction
Conditional Release Order (CRO)
Community Correction Order (CCO)
Intensive Correction Order (ICO)
Conviction Without Penalty
Deferral for Rehabilitation
Imprisonment
Defences
Some possible defences available to these charges can include:
You were coerced or threatened to act a certain way under the circumstances (Duress)
Your actions were necessary to prevent serious injury (Necessity)