Possession, Supply or Making of Explosives

The maximum penalty for a person who possesses an explosive in a public place is 5 years imprisonment. The maximum penalty for a person who possesses, supplies or makes an explosive in circumstances that give rise to reasonable suspicion that person did not possess, supply or make the explosive for a lawful purpose is liable to a maximum penalty of 3 years imprisonment and/or $5,500.00 fine. 

What is the Offence of Possessing, Supplying or Making explosives?

The Crimes Act 1900 at Section 93FA contains offences related to the possession, supply or making of explosives. The two available offences depend on whether the explosive is possessed in a public place, or whether a person possesses, supplies or makes explosive in circumstances that give rise to a reasonable suspicion that such explosive was not possessed, made or supplied for a lawful purpose. 

The following acts constitute the offence of Possessing, Supplying or Making Explosives:

• Taking fireworks to the park or the beach on New Year Eve,
• Making sparkler bombs at home, 
• Mixing together fuels, chemicals and oxidizers that ignite and create a pyrotechnic composition.

What Must Be Proven?

For a person to be found guilty of Possessing an Explosive in a Public Place, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• A person,
• “Possessed” 
• An “explosive” 
• In a “public place”.

For a person to be found guilty of the offence of Possessing, Supplying or Making an Explosive, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• A person, 
• “possessed”, or “made” or “supplied”,
• An “explosive”,
• Under circumstances that give rise to a reasonable suspicion that the person did not possess, supply or make the explosive for a lawful purpose. 

Definitions:

An “explosive” is defined in the Explosives Act 2003 to include: 

1. a substance, or a thing containing a substance, manufactured or used with a view to produce—

1. a practical effect by explosion, or
2. a pyrotechnic effect,

1. an article or substance that—

1. is classified under the ADG Code as too dangerous to transport, and
2. can produce an explosive or pyrotechnic effect,

1. a Class 1 dangerous good,
2. an article or substance prescribed by the regulations.

The Crimes Act 1900 at Section 7 deems a person to be in “possession” if they had the property in his or her custody, or knowingly has any such property in the custody of another person, or knowing has any such property in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or herself or not, and whether such property is there had or placed for his or her own use, or use of another. 

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

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 Possessing an Explosive in Public Place charge:

• The person was not in “possession” of the explosive, 
• The item was not an “explosive”, 
• The person was not in a “public place”. 

The following defences may be available for a Possession, Making or Supplying Explosive charge:

• The person did not “possess”, did not “supply” or did not “make” the explosive, 
• The item was not an “explosive”
• There are not circumstances that give rise to a reasonable suspicion that the item was not made for a lawful purpose,
• The explosive was made for a lawful purpose. 

Common Questions

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely. 

In NSW, a Court can impose any of the following penalties for a Possessing, Supplying or Making Explosives 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 the offence of Possessing an Explosive in a Public Place or the offence of Possessing, Supplying or Making Explosives 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 Possession of Explosives in a Public Place or Possessing, Making or Supplying an Explosive not for lawful purpose depends very much on the circumstances of their individual matter, whether it is a standalone offence or there are other associated charges and that person’s criminal history. 

For example, a person who possesses a large explosive device capable of causing significant damage and harm to nearby persons if detonated in a highly populated public area with prior convictions for public disorder offences, property damage and violence would be more likely to receive a Gaol sentence for this offence than a young person with no prior criminal history that took a singular firework to an empty park with no other persons around. 

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