Unregistered Firearms

The offence of ‘Unregistered Firearms’ is contained at Section 36 of the Firearms Act 1996. The offence carries a maximum penalty of 14 years imprisonment if the firearm is a pistol or prohibited firearm, or 5 years imprisonment in any other case. 

What is the Offence of Unregistered Firearms?

The Firearms Act 1996 makes it an offence for a person to use, possess, acquire or supply an unregistered “firearm”. As above, the maximum penalty for the offence varies on whether the firearm in question is a “pistol”, “prohibited firearm” or a “firearm” as defined by the definitions section and Schedule 1 of the Act. 

The following acts constitute the offence of possessing, acquiring or supplying an unregistered firearm:

• Possessing antique firearms that have not been registered with the Firearms Registry, 
• Lending or giving a hunting rifle to a friend that has not been registered with the Firearms Registry,
• Swapping your unregistered firearm for another person’s registered firearm,
• Having a Firearms Permit for one firearm but failing to register a new firearm with the Firearms Registry. 

What Must Be Proven?

For a person to be found guilty of the offence of Unregistered Firearms the Prosecution must prove each of the following matters beyond a reasonable doubt:

• That you “possessed”, “used”, “acquired” or “supplied”, 
• A “firearm”, “pistol” or “prohibited firearm”
• That is not registered.

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 definitions of the Firearms Act 1996 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, 
• “Acquire” to mean accept or receive supply or, 
• “Supply” to mean transfer of ownership, whether by sale, gift, barter, exchange or otherwise and includes an offer for supply, receive for supply, have in possession, conduct negotiations for supply, consign or deliver for supply or cause or allow supply. 

“Registered” is defined to mean registered for the time being under the Firearms Act 1996.

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 an Unregistered Firearms charge:

• That the Defendant:
  • Did not know, or could not reasonably be expected to have known the firearm concerned was unregistered, and
  • Was not the owner of the firearm at the time of the alleged offence.
• The Defendant is a licensed firearms dealer and an application for registration is made within 24 hours after acquiring or taking possession of the firearm.
• The Defendant did not “possess”, “use”, “acquire” or “supply” the firearm.
• The item concerned is not a “firearm”, “pistol” or “prohibited firearm”.
• The firearm was registered. 

Common Questions about Unregistered Firearms:

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 Unregistered 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 an offence of Unregistered 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 Using/Possessing/Supplying or Acquiring an Unregistered Firearm depends very much on the circumstances of their individual matter, and whether the item in question is a “pistol” or “prohibited firearm”. 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 supplied two unregistered prohibited firearm with a record of prior violent offending or a record of prior unregistered firearm offences would be treated more harshly and is more likely to receive a term of imprisonment as their sentence compared to a person who possessed one unregistered firearm and immediately registered the firearm when becoming aware of its unregistered status.

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