Unauthorised possession or use of a prohibited weapon: s 7 Weapons Prohibition Act 1988 (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 weapons,
• whether there is evidence of any connection between the possession of the weapons, the number, nature and type of weapons: R v Dunn [2003] NSWCCA 169 at [21],
• any connection between the weapon and any criminal associations. R v Amurao [2005] NSWCCA 32 at [69], and / or
• the way in which the weapon is secured or stored Mack v R [2009] NSWCCA 216 at [40].

This option is recommended only where you accept that:

1. you knowingly possessed or used a prohibited weapon,
2. you do not hold a permit OR if you do hold a permit, you were not using the weapon 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:

• you knowingly possessed or used a prohibited weapon,
• you do not hold a permit OR if you do hold a permit, you were not using the weapon for a ‘genuine reason’, and
• 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.

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 weapon.
• You hold a permit and were exercising ‘genuine use’ of the weapon.
  • Section 11 of the Weapons Prohibition Act 1988 (NSW) defines a ‘genuine use’ for possessing or using a weapon as recreational or sporting purposes, historical re-enactment purposes in a club or society, for use in film, television or theatre, for business or employment purposes, as an heirloom with genuine sentimental value, or for use in a museum.
• The weapon was never in your possession.
  • The weapon was brought into your home or vehicle by a person holding a permit, and at all relevant times, the weapon was in that other person’s possession.
  • If the weapon was located in a home where no one holds a permit, then the prosecution must prove that the weapon was in your possession by ruling out other occupants in the home.
• You did not reasonably know that the weapon was in your possession.
  • This may be a situation where a person brought a concealed weapon into your home or vehicle without your knowledge.
• You were in the process of surrendering the weapon.
  • Section 28 of the Weapons Prohibition Act 1988 (NSW) provides that a person does not contravene any section of this Act by immediately surrendering the weapon to a police officer.
• The weapon is not a prohibited weapon within the meaning of the Act.