Unauthorised possession or use of a prohibited weapon: s 7 Firearms Act 1996 (NSW)

The maximum penalty for this offence is imprisonment for fourteen years, or two years if dealt with in the Local Court. 

Please note that such a penalty is reserved for the most serious cases only. When assessing seriousness of an offence, the court will have regard to:

• the reason for possessing the firearm,
• whether there is evidence of any connection between the possession of the firearms
• the number, nature and type of firearm: R v Dunn [2003] NSWCCA 169 at [21],
• any connection between the firearm and any criminal associations. R v Amurao [2005] NSWCCA 32 at [69], and / or
• the way in which the firearm is secured or stored Mack v R [2009] NSWCCA 216 at [40].

This option is recommended only where you accept that:

1. you possessed or used a firearm,
2. you do not hold a permit OR if you do hold a permit, you were not using the firearm for a ‘genuine reason’, and
3. you do not have a legal defence

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It also demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist when being found guilty?

• A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
• Community Corrections Orders (“CCO”)
  • A court may exercise this option when aggravating circumstances exist. An example of an aggravating circumstance includes a repeat offence.
  • An example of a CCO is performing service within the community.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

To prove the charge of use or possess unauthorised weapon, the Prosecution must establish that:

1. you possessed or used a prohibited firearm,
2. you do not hold a permit OR if you do hold a permit, you were not using the firearm for a ‘genuine reason’, and
3. you do not have a legal defence (see the defences section below).

If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then the court must find you not guilty.

NB: Alternative verdict

Where an offence under section 7(1) of the Firearms Act 1996 is not proven, but the evidence shows the person has committed an offence against section 7A of the Firearms Act 1996,  the accused may be acquitted of the offence charged, but found guilty of an offence against that section.

Defences

• Self-defence
  • This defence applies if you hold a permit and found yourself in a situation where you needed to defend yourself, your property or another person.
• Necessity
• the use of the weapon was necessary to prevent serious injury, danger or a greater harm from occurring.
• Duress
  • Another person coerced or threatened you into using or possessing a firearm
• You hold a permit and were exercising ‘genuine reason’ for the use of the firearm
  • Section 12 of the Firearms Act 1996 defines a ‘genuine reason’ for possessing or using a firearm as: sport/target shooting, recreational hunting/vermin control where the applicant is a member of a hunting club or owner or occupier of rural land, primary production, vertebrate pest animal control, business or employment purposes, animal welfare or firearms collections where the applicant is a member of a society or club.
• The firearm was never in your possession.
  • The firearm was brought into your home or vehicle by a person holding a permit, and at all relevant times, the firearm was in that other person’s possession.
  • If the firearm is located in a home where no one holds a permit, then the prosecution must prove that the firearm was in your possession by ruling out other occupants in the home.
• You did not reasonably know that the firearm was in your possession.
  • This may be a situation where a person brought a concealed firearm into your home or vehicle without your knowledge.
• The firearm is not a prohibited weapon within the meaning of the Act.