Possession of Dangerous Articles

In NSW it is an offence to possess certain dangerous items or objects. The dangerous items or objects for which it is an offence to possess are listed in the legislation and include any item capable of discharging an irritant or any substance capable of causing bodily harm, any item with a fuse capable of use with an explosive, any detonator and any distress signal or flare.

This offence is known as Possession of Dangerous Articles.

A person can be charged with this offence if they are in possession of one of the above items whilst in a public place.

The maximum penalty for the offence is 2 years imprisonment.

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

• Prison Sentence
• Home Detention
• Intensive Corrections Order (ICO)
• Suspended Sentence
• Community Service Order (CSO)
• Community Corrections Orders (CCO)
• Good Behaviour Bond
• Fine
• Section 10A
• Conditional Release Order (CRO)
• Section 10

The Offence of Possess Dangerous Article

The offence of Possess Dangerous Article is contained in section 93FB(1) of the Crimes Act 1900 and states:

• A person who, in a public place, possesses:
  • anything (not being a firearm within the meaning of the Firearms Act 1996) capable of discharging by any means:
    • any irritant matter in liquid, powder, gas or chemical form or any dense smoke, or
    • any substance capable of causing bodily harm, or
  • a fuse capable of use with an explosive or a detonator, or
  • a detonator, or
  • a distress signal, or distress flare, that operates by emitting a bright light,

is liable, on conviction before the Local Court, to imprisonment for 2 years, or a fine of 50 penalty units, or both.

What Actions Might Constitute the Offence of Possess Dangerous Article?

Examples of Possess Dangerous Article include:

• Taking a flare to a football game;
• Carrying a stick of dynamite with a fuse in your backpack; or
• Leaving a spare work detonator in your car.

What the Police Must Prove

To convict you of Possess Dangerous Article the prosecution must prove each of the following matters beyond reasonable doubt:

• That you were in possession of one of the dangerous articles specified under the legislation; and
• That you were in a public place whilst in possession of the dangerous article.

Possible Defences for Possess Dangerous Article

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 dangerous article;
• To argue that you were not in a public place;
• To argue that the item you were in possession of is not one of the items listed in the legislation;
• To argue that you had a reasonable excuse for possessing the dangerous article;
• To argue that you were in possession of the dangerous article for a lawful purpose; or
• To raise necessity or duress as the reason for your conduct.

Which Court Will Hear Your Matter?

The charge is a summary offence which means that the matter will be finalised in the Local Court.

Types of Penalties:

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

Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive Corrections 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.

Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. 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): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). 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: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). 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.

Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.

Fines: When deciding the amount of a fine the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10A: A section 10A is a conviction, with no other penalty attached to it. Read more.

Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. 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.