Possess or Use Unauthorised Prohibited Firearm or Pistol

In NSW, using or possessing a pistol or a prohibited firearm without authorisation carries a maximum penalty of 14 years imprisonment. A pistol is defined as anything that is reasonably capable as being fired by one hand and it is also limited to specific dimensions. There is a list of prohibited firearms in schedule 1 of the Firearms Act 1996 which can be found here. (link to http://www.austlii.edu.au/au/legis/nsw/consol_act/fa1996102/sch1.html)

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 Unauthorised Possession or Use of a Pistol or Prohibited Firearm

The offence of Unauthorised possession or use of a pistol or prohibited firearm is contained in section 7 of the Firearms Act 1996 which states: A person must not possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit. Maximum penalty: imprisonment for 14 years.

What Actions Might Constitute Unauthorised Possession or Use of a Pistol or a Prohibited Item?

• If a person does not hold the appropriate firearm licence for a pistol and they are in possession of, or are found using a pistol;
• If you are in possession of or caught using a prohibited firearm;
• If you have a firearms licence for a pistol but are breaking a condition of that licence, for example if you have a gun licence because you are employed in the security industry but are using your gun to do recreational shooting.

What the Police Must Prove

To convict you of unauthorised possession of a firearm, the prosecution must prove each of the following matters beyond a reasonable doubt:

• That you were in possession of or using a:
  • Prohibited firearm; or
  • Pistol;

• And either of the following:
  • You did not have a licence to do so; or
  • You had a firearm licence but you were using or possessing a firearm in a way that contravenes a condition of your licence; or
  • You had a firearm licence but were using the firearm otherwise than for the purpose established by you as being the genuine reason for possessing or using the firearm.

Possible Defences For Unauthorised Use or Possession of a Prohibited Firearm or Pistol

Possible defences to unauthorised use or possession of a pistol or prohibited firearm charge include but are not limited to:

• Duress;
• Necessity;
• You had a licence that allowed you to possess the pistol;
• You had a licence that allowed you to use the pistol in the manner that you were;
• The firearm does not fall within the definition of a prohibited firearm.
• You could not have reasonably been expected to know the firearm or pistol was in or on your house or car;
• The firearm or pistol was brought into your car or home by someone who was lawfully authorised to possess it.

Which Court Will Hear Your Matter?

This offence is a Table 2 offence. This means that the matter will likely be dealt with in the Local Court, however, the DPP can elect to have the matter dealt with in the District Court. If they do so, this will give rise to harsher penalties.

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.