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Unauthorised possession of firearms in aggravated circumstances

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In NSW it is an offence to possess a firearm unless it is a registered firearm that you have a firearms licence for. This offence is known as Possess Firearm. It is a more serious offence for an unlicensed person to be in possession of three or more unregistered firearms. This offence is known as Unauthorised Possession of Firearms in Circumstances of Aggravation.

A person can be charged with this offence if they are in possession of three or more firearms which are not registered and for which they do not have a licence to possess.

The maximum penalty for this offence is 10 years imprisonment. If one or more of the firearms is a pistol or prohibited firearm then the maximum penalty for the offence is doubled to 20 years imprisonment.

In NSW, a court can impose any of the following penalties for this charge.


THE OFFENCE OF UNAUTHORISED POSSESSION OF FIREARMS IN CIRCUMSTANCES OF AGGRAVATION

The offence of Unauthorised Possession of Firearms in Circumstances of Aggravation is contained in Section 51D of the Firearms Act 1996 and states:

  • A person who is in possession of more than 3 firearms is guilty of an offence under this subsection if:
    • the firearms are not registered, and
    • the person is not authorised by a licence or permit to possess the firearms.

Maximum penalty: imprisonment for 10 years.



  • A person who is in possession of more than 3 firearms any one of which is a pistol or prohibited firearm is guilty of an offence under this subsection if:
    • the firearms are not registered, and
    • the person is not authorised by a licence or permit to possess the firearms.

Maximum penalty: imprisonment for 20 years.

WHAT ACTIONS MIGHT CONSTITUTE THE OFFENCE OF UNAUTHORISED POSSESSION OF FIREARMS IN CIRCUMSTANCES OF AGGRAVATION

Examples of Unauthorised Possession of Firearms in Circumstances of Aggravation include:

  • Displaying an antique but unregistered set of three World War II pistols which your grandfather gave to you in the dining room.
  • toring ten unregistered firearms at your holiday house for a ‘friend’ who says he has a gun licence even though you do not; or
  • Keeping an unregistered pistol, a rifle and a shot gun in your gun safe when you are not authorised to possess them under your firearms licence.

WHAT THE POLICE MUST PROVE

To convict you of Unauthorised Possession of Firearms in Circumstances of Aggravation the prosecution must prove each of the following matters beyond reasonable doubt:

  • That you were in possession of three or more firearms, pistols or prohibited firearms;
  • That three or more of the firearms, pistols or prohibited firearms were unregistered;
  • That you do not hold a firearms licence or that under your firearms licence you were not authorised to possess the three or more unregistered firearms, pistols or prohibited firearms.

POSSIBLE DEFENCES FOR UNAUTHORISED POSSESSION OF FIREARMS IN CIRCUMSTANCES OF AGGRAVATION

The common ways to defend this charge are:

  • To maintain your innocence if you did not commit the act;
  • To argue that you were not ‘in possession’ of the three or more firearms, pistols or prohibited firearms;
  • To argue that some or all of the firearms, pistols or prohibited firearms were registered;
  • To argue that you were authorised to possess some or all of the firearms, pistols or prohibited firearms under your firearms licence; or
  • To raise necessity or duress as the reason for your conduct.

WHICH COURT WILL HEAR YOUR MATTER?

The charge is a table two offence which means that the matter will be finalised in the Local Court unless the Director of Public Prosecutions elects to have the matter finalised in the District Court.

If the matter is finalised in the Local Court the court can only impose a maximum penalty of two years imprisonment.



Types of penalties:

Jail: This is the most serious penalty for this charge and involves full time detention in a correctional facility. Read more.

Home Detention: Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. Read more.

Intensive correction order(ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Periodic detention(commonly known as weekend detention): This form of imprisonment ceased to be a sentencing option in October 2010.

Suspended sentence: This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community service order (CSO): This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good behaviour bond: This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Fines: When deciding the amount of a fine for an unauthorised possession of firearms in aggravated circumstances charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10: avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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