Custody of a knife in a public place
Section 11C of the Summary Offences Act 1988 (NSW) provides that:
- A person must not, without reasonable excuse (proof of which lies on the person), have in his or her custody a knife in a public place or a school.
When charged with this offence, you will either be issued with a ‘court attendance notice’ that requires you to attend court, or you will be issued with a ‘penalty notice’ that simply requires you to pay a fine. Police have a discretion to issue you with a ‘penalty notice’ if you have not previously been charged with any knife offences.
Payment of the fine will not result in a criminal conviction or have any consequences of civil liability arising out of the same occurrence.
Regulation 15 of the Summary Offences Regulation 2015 (NSW) provides that the fine is $550. Therefore, it would be sensible to pay the fine, rather than elect to have the matter heard in court.
What is a knife?
Section 3 of the Summary Offences Act 1988 (NSW) defines a knife as:
(a) a knife blade, or
(b) a razor blade, or
(c) any other blade.
What is a public place or a school?
The definitions of ‘school’ and ‘public place’ are both found in Section 3 of the Summary Offences Act 1988 (NSW). It provides:
“public place” means:
- a place (whether or not covered by water), or
- a part of premises,
that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons.
“school” means:
- a government school or a registered non-government school within the meaning of the Education Act 1990 , and
- a school providing education (whether secular or religious) at a pre-school or infants’ school level or at a primary or secondary level, and
- a place used for the purposes of an establishment commonly known as a child-minding centre or for similar purposes, and
- the land, and any building occupied by or in connection with the conduct of such a school or place,
What is the maximum penalty for custody of a knife in a public place?
The maximum penalty for this offence is:
- imprisonment for two years, or
- 20 penalty units ($2,200), or
- both
Please note that the above is the maximum penalty only. In determining a penalty, the court will have regard to:
- your criminal history, and whether this is the first time that you have been charged with this, or any other offence,
- your prior good character,
- and any other factors the court considers relevant.
What are my options?
Plead Guilty
This option is recommended only where you accept that:
- you had custody of a knife, and
- you were in a public place or a school, and
- you had the knife without a reasonable excuse.
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 fine of $2,200 (20 penalty units)
- 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
- Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
- 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 Examples of aggravating circumstances include 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.
Plead Not Guilty
To prove the charge of use or possess unauthorised weapon, the Prosecution must establish that:
- you had custody of a knife, and
- you were in a public place or a school, and
- you had the knife without a reasonable excuse.
If the Prosecution cannot prove all of the above elements beyond reasonable doubt, then the court must find you not guilty.
Defences
Without limitation, it is a reasonable excuse for a person to have custody of a knife if:
- the custody is reasonably necessary in all the circumstances for any of the following:
- the lawful pursuit of the person’s occupation, education or training,
- the preparation or consumption of food or drink,
- participation in a lawful entertainment, recreation or sport,
- the exhibition of knives for retail or other trade purposes,
- an organised exhibition by knife collectors,
- the wearing of an official uniform,
- genuine religious purposes, or
- the custody is reasonably necessary in all the circumstances during travel to or from or incidental to an activity referred to in paragraph (a), or
- the custody is of a kind prescribed by the regulations.
It is not a reasonable excuse for a person to have custody of a knife solely for the purpose of self-defence or for the defence of another person.
The defences of self-defence, duress or necessity do not apply here.
Armed with intent to commit indictable offence – Section 114 of the Crimes Act 1900
What is armed with intent to commit an indictable offence?
This is where a weapon is located on your person and there is an intention of committing an indictable offence.
This is a serious offence that is normally dealt with in the District Court)
s 114 of the Crimes Act 1900 provides four separate instances of this offence:
- If you are armed with a weapon or instrument and intend to commit an indictable offence; or
- if without lawful excuse, there is in your possession a safebreaking, housebreaking or car breaking equipment in your possession; or
- if your face was disguised with the intention of committing an indictable offence; or
- if you enter or remain in or upon any part of a building with the intention of committing an indictable offence.
Being armed with a weapon means:
- the weapon or instrument is considered dangerous or offensive; and that
- you have immediate physical possession of the weapon or instrument.
“Dangerous weapon” means:
- a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996 , or
- a prohibited weapon within the meaning of Schedule 1 of the Weapons Prohibition Act 1998 , such as
‘flick-knives, sheath knives, ballistic knives, bombs, spearguns, crossbows, slingshots (except homemade and for use by a child engaging in play), a laser pointer with an output of more than 1 milliwatt, blowpipes, dart guns, whips, kung fu sticks, batons, flame throwers, tasers, studded gloves, handcuffs, body armour vests, grenades, rockets, missiles and mines in the nature of explosives or incendiaries, devices capable of administering electric shocks, and any device capable of discharging any irritant matter.’ or - a spear gun.
What is the maximum penalty for Armed with Intent to Commit an Indictable Offence?
The maximum penalty for this offence is imprisonment for seven 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.
What are my options?
Plead Guilty
This option is recommended only where you accept that:
- You were armed with a weapon; and
- Intended to commit an indictable offence (and not a less serious one) by your act or omission. It must be foreseen as an inevitable consequence of your act or omission. (This is enough to give rise to intention even if the act or omission was not intended.)
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
- Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
- 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 Examples of aggravating circumstances include 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.
Plead Not Guilty
To prove the charge of use or possess unauthorised weapon, the Prosecution must establish that:
- You were armed with a weapon; and
- Intended to commit an indictable offence by your act or omission (and not a less serious one). It must be foreseen as an inevitable consequence of your act or omission. (This is enough to give rise to intention even if the act or omission was not intended.)
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 did not form an intention to commit an indictable offence
- EG. Intoxication as a result of drugs and/or alcohol.
- The instrument is not a prohibited weapon within the meaning of the Act.