Introduction

In New South Wales, firearm charges fall under the Crimes Act 1900. Such crimes are taken very seriously because guns can cause great harm to both people and society. Folks dive into these rules to understand the different charges outlined, what makes up each offence, how someone might defend themselves legally, and what kind of punishments could be slapped on those found guilty. There’s plenty to discover about how these laws work and the way they protect everyone. Keen to learn more about what goes down with firearm laws in NSW? Keep reading.

Possessing an Unregistered Firearm in a Public Place: Criminal Offence under NSW Law

Under Section 93I(1) of the Crimes Act 1900 (NSW), possessing an unregistered firearm in a public place is a serious offence. This offence is designed to regulate the possession and use of firearms to ensure public safety.

What does the prosecution need to prove?

To secure a conviction for possessing an unregistered firearm in a public place, the prosecution must prove the following elements beyond a reasonable doubt:

1. The accused was in possession of an unregistered firearm.
2. The accused possessed the firearm in a public place.
3. The accused was not authorised by the Firearms Act 1996 (NSW) to possess the firearm.

Defences

Several defences may be available to individuals charged with this offence. These defences include:

1. Self-Defence: If the accused possessed the firearm for the purpose of protecting themselves or others from imminent harm, they may be able to raise the defence of self-defence.
2. Duress: If the accused was coerced or threatened into possessing the firearm, they may be able to raise the defence of duress.
3. Necessity: If the accused possessed the firearm to prevent a greater evil, such as to stop a violent crime, they may be able to raise the defence of necessity.

Penalties

The penalties for possessing an unregistered firearm in a public place can be severe. In the Local Court, the maximum penalty is 2 years imprisonment. However, if the prosecution elects to have the matter heard in the District Court, the maximum penalty increases to 10 years imprisonment. The severity of the penalty will depend on various factors, including the type of firearm, the circumstances of the possession, and the accused’s criminal history.

Offence of Aggravated Possession of an Unregistered Firearm in a Public Place

Section 93I(2) of the Crimes Act 1900 (NSW) addresses the offence of aggravated possession of an unregistered firearm in a public place. This offence is a more serious version of the basic possession offence and carries harsher penalties.

What does the prosecution need to prove?

To secure a conviction for aggravated possession of an unregistered firearm in a public place, the prosecution must prove the following elements beyond a reasonable doubt:

1. The accused was in possession of an unregistered firearm.
2. The accused possessed the firearm in a public place.
3. The accused was not authorised by the Firearms Act 1996 (NSW) to possess the firearm.
4. Circumstances of aggravation were present.

Circumstances of aggravation include:

• Possessing more than one unregistered firearm
• Possessing an unregistered pistol
• Possessing an unregistered prohibited firearm (such as a machine gun or a self-loading rifle)

Defences

The defences available for aggravated possession of an unregistered firearm are the same as those for the basic offence of possessing an unregistered firearm in a public place. These defences include self-defence, duress, and necessity.

Penalties

The penalties for aggravated possession of an unregistered firearm in a public place are more severe than those for the basic offence. The maximum penalty is 14 years imprisonment. The severity of the penalty will depend on various factors, including the type and number of firearms involved, the circumstances of the possession, and the accused’s criminal history.

Offence of Using an Offensive Weapon

Section 33B of the Crimes Act 1900 (NSW) outlines the offence of using a weapon to resist arrest or hinder investigation. This section is designed to protect law enforcement officers and ensure the proper administration of justice.

What does the prosecution need to prove?

To secure a conviction for using a weapon to resist arrest or hinder investigation, the prosecution must prove the following elements beyond a reasonable doubt:

1. The accused used, attempted to use, or threatened to use an offensive weapon or instrument.
2. The accused intended to prevent or hinder a lawful arrest or to hinder a police officer from investigating a suspected unlawful act.

An offensive weapon or instrument is defined as:

• A dangerous weapon (such as a firearm, prohibited weapon, or spear gun)
• Anything made or adapted for offensive purposes
• Anything used, intended for use, or threatened to be used for offensive purposes, whether or not it is ordinarily used for such purposes or is capable of causing harm.

Defences

Several defences may be available to individuals charged with this offence. These defences include:

1. Self-Defence: If the accused used the weapon to protect themselves or others from imminent harm, they may be able to raise the defence of self-defence.
2. Duress: If the accused was coerced or threatened into using the weapon, they may be able to raise the defence of duress.
3. Necessity: If the accused used the weapon to prevent a greater evil, they may be able to raise the defence of necessity.

Penalties

The maximum penalty for using a weapon to resist arrest or hinder investigation is 12 years imprisonment. The severity of the penalty will depend on various factors, including the type of weapon used, the circumstances of the offence, and the accused’s criminal history.

Offence of Discharging a Firearm with Intent

Section 33A of the Crimes Act 1900 (NSW) outlines the offence of discharging a firearm with intent. This is a serious offence due to the potential for grievous bodily harm or death.

What does the prosecution need to prove?

To secure a conviction for discharging a firearm with intent, the prosecution must prove the following elements beyond a reasonable doubt:

1. The accused discharged a firearm or other loaded arms, or attempted to do so.
2. The accused intended to cause grievous bodily harm to another person or to resist or prevent lawful arrest or detention.

Defences

Several defences may be available to individuals charged with this offence. These defences include:

1. Self-Defence: If the accused discharged the firearm to protect themselves or others from imminent harm, they may be able to raise the defence of self-defence.
2. Duress: If the accused was coerced or threatened into discharging the firearm, they may be able to raise the defence of duress.
3. Necessity: If the accused discharged the firearm to prevent a greater evil, they may be able to raise the defence of necessity.

Penalties

The maximum penalty for discharging a firearm with intent is 25 years imprisonment. This is a standard non-parole period of 9 years for offences committed on or after 21 August 2015. The severity of the penalty will depend on various factors, including the intent behind the discharge, whether any harm was caused, and the accused’s criminal history.

Offence of Causing Danger with a Firearm or Spear Gun

Section 93G of the Crimes Act 1900 (NSW) addresses the offence of causing danger with a firearm or spear gun. This section aims to prevent the reckless or negligent handling of firearms and spear guns that could endanger the lives of others.

What does the prosecution need to prove?

To secure a conviction for causing danger with a firearm or spear gun, the prosecution must prove beyond a reasonable doubt that:

1. The accused possessed a loaded firearm or spear gun.
2. The accused possessed the loaded firearm or spear gun in a public place or in a manner that endangered the life of another person.

Alternatively, the prosecution can prove that the accused:

1. Fired the firearm or spear gun in or near a public place.
2. Carried or fired the firearm or spear gun in a manner likely to injure or endanger the safety of themselves or another person or property, or with disregard for the safety of themselves or any other person.

Defences

Several defences may be available to individuals charged with this offence. These defences include:

1. Reasonable Excuse or Lawful Purpose: If the accused had a reasonable excuse or lawful purpose for possessing the firearm or spear gun, such as for work or during an approved hunting activity, this can be a defence.
2. Self-Defence: If the accused used the firearm or spear gun to protect themselves or others from imminent harm, they may be able to raise the defence of self-defence.
3. Duress: If the accused was coerced or threatened into causing danger with the firearm or spear gun, they may be able to raise the defence of duress.
4. Necessity: If the accused caused danger with the firearm or spear gun to prevent a greater evil, they may be able to raise the defence of necessity.

Penalties

The maximum penalty for causing danger with a firearm or spear gun is 10 years imprisonment. The severity of the penalty will depend on various factors, including the specific circumstances of the offence, the degree of danger caused, and the accused’s criminal history.

Offence of Trespassing or Dangerous Use of Firearm or Spear Gun

Section 93H of the Crimes Act 1900 (NSW) addresses the offence of trespassing with or dangerous use of a firearm or spear gun. This section aims to deter individuals from possessing firearms or spear guns while trespassing, as well as using these weapons in a dangerous manner.

What does the prosecution need to prove?

To secure a conviction for trespassing with or dangerous use of a firearm or spear gun, the prosecution must prove beyond a reasonable doubt that:

1. The accused possessed a firearm, spear gun, or imitation firearm.
2. The accused entered a building or land (other than a road) while possessing the item.

Alternatively, the prosecution can prove that the accused:

1. Fired a firearm or spear gun in or into any building or on or onto any land.
2. The accused did not have a reasonable excuse or lawful purpose for doing so.

Defences

Several defences may be available to individuals charged with this offence. These defences include:

1. Ownership or Occupier’s Permission: If the accused owned or occupied the building or land, or had permission from the owner or occupier to possess the item, this can be a defence.
2. Reasonable Excuse or Lawful Purpose: If the accused had a reasonable excuse or lawful purpose for possessing the item, such as for work or during an approved hunting activity, this can be a defence.
3. Self-Defence: If the accused used the firearm or spear gun to protect themselves or others from imminent harm, they may be able to raise the defence of self-defence.
4. Duress: If the accused was coerced or threatened into committing the offence, they may be able to raise the defence of duress.
5. Necessity: If the accused committed the offence to prevent a greater evil, they may be able to raise the defence of necessity.

Penalties

The maximum penalty for trespassing with a firearm or spear gun is 5 years imprisonment. The maximum penalty for the dangerous use of a firearm or spear gun is 10 years imprisonment. The severity of the penalty will depend on various factors, including the specific circumstances of the offence, the degree of danger caused, and the accused’s criminal history.

Offence of Stealing a Firearm

Under Section 154D of the Crimes Act 1900 (NSW), stealing a firearm is a serious offence. This section aims to prevent the theft of firearms and the potential harm that can result from their misuse.

What does the prosecution need to prove?

To secure a conviction for stealing a firearm, the prosecution must prove the following elements beyond a reasonable doubt:

1. The accused took and carried away a firearm.
2. The taking was done without the consent of the owner.
3. The accused intended to permanently deprive the owner of the firearm.

Defences

Several defences may be available to individuals charged with this offence. These defences include:

1. Duress: If the accused was coerced or threatened into stealing the firearm, they may be able to raise the defence of duress.
2. Necessity: If the accused stole the firearm to prevent a greater evil, they may be able to raise the defence of necessity.
3. Self-defence: If the accused stole the firearm to protect themselves or others from imminent harm, they may be able to raise the defence of self-defence.

Penalties

The maximum penalty for stealing a firearm is 14 years imprisonment. The severity of the penalty will depend on various factors, including the type of firearm stolen, the circumstances of the theft, and the accused’s criminal history.

Offence of Possessing Explosives in a Public Place

Under Section 93FA(1) of the Crimes Act 1900 (NSW), it is a criminal offence to possess an explosive in a public place. This offence aims to protect the public from the dangers associated with explosives.

What does the prosecution need to prove?

To secure a conviction for possessing explosives in a public place, the prosecution must prove the following elements beyond a reasonable doubt:

1. The accused possessed an explosive.
2. The accused possessed the explosive in a public place.

A public place is defined as any place or premise that is open to the public, such as parks, shopping centres, pubs, and public reserves.

Defences

Several defences may be available to individuals charged with this offence. These defences include:

1. Reasonable Excuse or Lawful Purpose: If the accused had a reasonable excuse or lawful purpose for possessing the explosive, such as for work purposes (e.g., demolition), festivities (e.g., cultural celebrations or sporting events), scientific research, or artistic purposes, this can be a defence.
2. Duress: If the accused was coerced or threatened into possessing the explosive, they may be able to raise the defence of duress.
3. Necessity: If the accused possessed the explosive to prevent a greater evil, they may be able to raise the defence of necessity.
4. Self-defence: If the accused possessed the explosive to protect themselves or others from imminent harm, they may be able to raise the defence of self-defence.

Penalties

The maximum penalty for possessing explosives in a public place is:

• Local Court: 2 years imprisonment or a fine of $5,500, or both.
• District Court: 5 years imprisonment.

The severity of the penalty will depend on various factors, including the type and amount of explosive, the circumstances of the possession, and the accused’s criminal history.

Offence of Possessing, Supplying or Making an Explosive

Under Section 93FA(2) of the Crimes Act 1900 (NSW), it is a criminal offence to possess, supply, or make an explosive under circumstances that raise a reasonable suspicion that the person did not do so for a lawful purpose.

What does the prosecution need to prove?

To secure a conviction for possessing, supplying, or making an explosive, the prosecution must prove the following elements beyond a reasonable doubt:

1. The accused possessed, supplied, or made an explosive.
2. The circumstances surrounding the possession, supply, or making of the explosive give rise to a reasonable suspicion that the accused did not do so for a lawful purpose.

Defences

Several defences may be available to individuals charged with this offence. These defences include:

1. Reasonable Excuse or Lawful Purpose: If the accused had a reasonable excuse or lawful purpose for possessing, supplying, or making the explosive, such as for work purposes (e.g., demolition), festivities (e.g., cultural celebrations or sporting events), scientific research, or artistic purposes, this can be a defence.
2. Duress: If the accused was coerced or threatened into possessing, supplying, or making the explosive, they may be able to raise the defence of duress.
3. Necessity: If the accused possessed, supplied, or made the explosive to prevent a greater evil, they may be able to raise the defence of necessity.

Penalties

The maximum penalty for possessing, supplying, or making an explosive under suspicious circumstances is:

• Local Court: 2 years imprisonment and/or a fine of 50 penalty units.
• District Court: 3 years imprisonment and/or a fine of 50 penalty units.

The severity of the penalty will depend on various factors, including the type and amount of explosive, the circumstances of the possession, supply, or making, and the accused’s criminal history.

Offence of Possessing Dangerous Articles Other Than Firearms

Section 93FB(1) of the Crimes Act 1900 (NSW) makes it an offence to possess a dangerous article other than a firearm in a public place. This section aims to protect the public from harm caused by dangerous articles.

What does the prosecution need to prove?

To secure a conviction for possessing a dangerous article other than a firearm, the prosecution must prove the following elements beyond a reasonable doubt:

1. The accused possessed a dangerous article other than a firearm.
2. The dangerous article was capable of discharging any irritant matter or substance that can cause bodily harm, or a fuse or detonator that can be used with an explosive.
3. The accused possessed the dangerous article in a public place.

Defences

Several defences may be available to individuals charged with this offence. These defences include:

1. Reasonable Excuse or Lawful Purpose: If the accused had a reasonable excuse or lawful purpose for possessing the dangerous article, such as for work purposes or self-defence, this can be a defence.
2. Duress: If the accused was coerced or threatened into possessing the dangerous article, they may be able to raise the defence of duress.
3. Necessity: If the accused possessed the dangerous article to prevent a greater evil, they may be able to raise the defence of necessity.

Penalties

The maximum penalty for possessing a dangerous article other than a firearm is 2 years imprisonment and/or a fine of 50 penalty units. The severity of the penalty will depend on various factors, including the type of dangerous article, the circumstances of the possession, and the accused’s criminal history.

Conclusion

Firearm offences under the Crimes Act 1900 (NSW) carry severe penalties, reflecting the potential danger and harm associated with the misuse of firearms. The offences discussed in this article represent a range of prohibited activities, from possessing unregistered firearms to using them with intent to cause harm. Understanding these offences is crucial for firearm owners and the general public alike.

It is important to remember that this article provides a general overview of firearm offences under the Crimes Act 1900 (NSW). The specific circumstances of each case will determine the applicable charges and penalties. If you are facing charges related to any of these offences, it is crucial to seek legal advice from an experienced criminal lawyer to understand your rights and options.

At Daoud Legal: Sydney Criminal Defence & Traffic Lawyers, our experienced team specialises in criminal law and can provide expert guidance on firearm offences and weapons offences in NSW. We understand the complexities of the Crimes Act 1900 (NSW) and can help you navigate the legal process, ensuring your rights are protected throughout. Whether you’re dealing with charges related to unregistered firearms, prohibited weapons, or other firearm-related offences, our criminal lawyers are here to provide the robust defence you need in the Local Court or higher courts.