Unlawfully Obtain or Possess Regulated Weapons/Explosives
In NSW, possessing or using a prohibited weapon without authorisation is an offence that carries a maximum penalty of 14 years imprisonment. Schedule 1 of the Weapons Prohibition Act 1998 contains an exhaustive list of weapons prohibited in NSW.
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
- Section 10A
- Conditional Release Order (CRO)
- Section 10
The Offence of Unauthorised Possession or use of a Prohibited Weapon:
The offence of ‘unauthorised possession or use of a prohibited weapon’ is contained in section 7 of the Weapons Prohibition Act 1998, which states: “a person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit.”
Subsection (2) goes on to state: “without limiting the operation of subsection (1), a person who is the holder of a permit to possess or use a prohibited weapon is guilty of an offence under this section if the person: (a) possesses or uses the prohibited weapon for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the weapon, or (b) contravenes any condition of the permit.”
Permit Categories and “Genuine Reason”
Section 8 of the Weapons Prohibition Act contain classes of permits and authorities to possess or use prohibited weapons. These include:-
- Authority to possess and use a specified kind of prohibited weapon for a stated ‘genuine reason;
- Authority to possess, buy, sell and/or manufacture a specified kind of prohibited weapon to carry on business as a weapons dealer at a specified premises;
- Authority to carry on business as a theatrical weapons armourer, and in the course of that employment to:
- Possess, use, buy, sell and manufacture a specified kind of prohibited weapon; and
- Supervise and train others involved in a cinematographic, television or theatrical production in the use of prohibited weapons, as specified by the permit.
Permits cannot be granted unless a “genuine reason” can be established, in an application to the Commissioner of Police, as to why you should possess or use that prohibited weapon. Some examples are:-
- Recreational/sporting purposes;
- Historical re-enactment purposes;
- Business/employment purposes;
- Film/TV/theatrical purposes;
- Public museum purposes;
- Scientific purposes.
What Actions Might Constitute Unauthorised Possession or Use of a Prohibited Weapon?
“Possession” is defined in section 4 of the Act as any case in which a person knowingly:
- Has custody of the weapon;
- Has the weapon in custody of another person; or
- Has the weapon in or on any premises, place, vehicle, vessel, aircraft, whether or not belonging to or occupied by the person.
Some examples of unauthorised possession or use of a prohibited weapon are:-
- If you are holding a prohibited weapon without a licence, or have a prohibited weapon in your car, or home, without a licence;
- If you have asked someone to hold a prohibited weapon for you, though you do not hold a licence for that weapon;
- If you do have a licence for a prohibited weapon, by use that prohibited weapon for a different purpose than stated in that licence.
What the Police Must Prove:
To convict you of unauthorised possession or use of a prohibited weapon, the Prosecution must prove each of the following matters beyond a reasonable doubt:-
- That you were in possession of or using;
- A prohibited weapon;
And any of the following:-
- You did not have a licence to do so;
- You had a licence, but were using or possessing that weapon in a way that contravenes a condition of your licence; or
- You had a licence but were using the weapon otherwise than for the purpose established by you as being the ‘genuine reason’ for possessing or using the weapon.
Possible Defences to Unlawfully Obtain or Possess Regulated Weapons/Explosives
The most common ways to defend the charge of Unlawfully Obtain or Possess Regulated Weapons/Explosives are:
- To maintain your innocence if you did not commit the act;
- To argue that you did not obtain or possess the item in question;
- To argue that the item you obtained or were in possession of was not a regulated weapon or explosive;
- To argue that the regulated weapon or explosive was not unlawfully obtained or unlawfully possessed;
- To argue that you had the requisite authority or permit to possess the item; or
- To raise necessity or duress as the reason for your conduct.
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:
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.
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.