Unauthorised Possession or Use of Pistols or Prohibited Firearms

The offence of ‘Unauthorised Possession or Use of Pistols or Prohibited Firearms’ is contained at Section 7 of the Firearms Act 1996. The offence carries a maximum penalty of 14 years imprisonment and has a 4-year standard non-parole period. 

What is Unauthorised Possession or Use of Pistols or Prohibited Firearms?

The Firearms Act 1996 makes it an offence for a person to possess or use a “pistol” or “prohibited firearm” without authority. This offence applies specifically to prohibited firearms and pistols as defined by the Firearms Act 1996, the alternate offence of ‘Unauthorised Possession or Use of Firearms’ generally is contained at Section 7A of the Firearms Act 1996. A person only has authorisation for possession or use of firearms when they have a valid firearms licence issued by the Firearms Registry for each firearm or pistol in their possession. 

The following acts constitute Unauthorised Possession or Use of Pistols or Prohibited Firearms:

• Having a machine gun on your property. 
• Possessing a firearm that duplicates in appearance some other article (walking stick, key ring) and disguises the fact that it is a firearm.
• Using a firearm with an attachment capable of muffling, reducing or stopping the noise created by the firearm. 
• Using a prohibited firearm other than the purpose established by the licence or permit.

What Must Be Proven?

For a person to be found guilty of Unauthorised Possession or Use of Pistols or Prohibited Firearms the Prosecution must prove each of the following matters beyond a reasonable doubt:

• That you “possessed” or “used”, 
• A “prohibited firearm” as defined in Schedule 1 of the Act, or a “pistol” as defined by the Act,
• Without authorisation by a licence or permit. 

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Definitions:

The Act defines a “firearm” as a gun, or other weapon that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank firearm, or an air gun, but does not include a paintball marker within the meaning of the Paintball Act 2018 nor anything declared in the Firearms Regulation 2017 to not be a firearm. 

A “pistol” is defined to mean a firearm that is reasonably capable of being raised and fired by one hand and does not exceed any dimension prescribed in the Firearms Regulations 2017. 

A list of the specified “prohibited firearms” is contained at Schedule 1 of the Firearms Act 1996 and includes machine guns, self-loading rimfire or centre-fire rifles, self-loading or pump action shot guns, any firearm with an attachment capable of muffling noise created by firearms, any firearm that substantially duplicates these items.  

Section 4A of the Firearms Act 1996 deems a person to be in “possession” of a firearm when the firearm is in or on any premises owned, leased or occupied, or in the care, control or management of the person charged unless the Court is satisfied that the firearm was on the premises on behalf of a person who was lawfully authorised to possess the firearm, the person did not know and could not reasonably be expected to know the firearm was on the premises or on the evidence before the Court the person was not in possession of the firearm.

The Act defines “use” of firearm to mean fire the firearm or hold it so as to cause a reasonable belief that it will be fired, whether or not it is capable of being fired. 

Which Court Will Hear the Matter?

This offence is a Table 2 offence, which means that it will be dealt with in the Local Court unless the Prosecution elects to have the matter dealt with in the District Court.

Possible Defences

The following defences may be available for an Unauthorised Possession or Use of Pistols or Prohibited Firearms charge:

• The item is not a “pistol” or “prohibited firearm”,
• The person was not “in possession” or did not “use” the pistol or prohibited firearm,
• The person had authorisation for possession or use by way of a licence or permit. 

Common Questions

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely. 

In NSW, a Court can impose any of the following penalties for an Unauthorised Possession or Use of Pistols or Prohibited Firearms charge.

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for Unauthorised Possession or Use of Pistols or Prohibited Firearms might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of violence can completely rule out certain career paths such as teaching and a range of government employment options. Violent offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol?

Whether a person will go to Gaol for the offence of Unauthorised Possession or Use of Pistols or Prohibited Firearms depends very much on the circumstances of their individual matter. It may also depend on whether the charge is finalized in the Local or the District Court, with the District Court having a longer Gaol term available as a sentencing option (up to 14 years) compared to the Local Court (up to 2 years in the case of one sequence or 3 years in the case of multiple offences). 

For example, someone who uses a prohibited firearm in the commission of an offence with a record of prior violent offending or a record of possessing unauthorised firearms would be treated more harshly and is more likely to receive a term of imprisonment as their sentence compared to a person who possessed a prohibited firearm with a recently expired permit with no criminal history.

How does the standard non-parole period apply?

This offence has an applicable standard non-parole period of 4 years. Standard non-parole periods are legislative guideposts that are set by Parliament to indicate the seriousness of an offence and are required to be taken into account by the sentencing Magistrate or Judge when determining the appropriate sentence for the offence. A standard non-parole period does not mean a person will automatically be sentenced to 4 years imprisonment for any and every Unauthorised Possession or Use of Pistols or Prohibited Firearms charge, but it is an important sentencing factor that will be considered and weighed against the objective seriousness of the offence, the offender’s moral culpability and the offender’s subjective circumstances.   

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.