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Trespassing With or Dangerous Use of Firearms/Spear Gun


Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In NSW it is an offence to possess a firearm or spear gun and enter a building or land without a reasonable excuse or lawful purpose. It is still an offence even if the firearm or spear gun is a replica. This offence is known as Trespass with Firearms.

A person can be charged with this offence if they are trespassing on any land or in any building with a real or replica firearm or spear gun in their possession. The maximum penalty for the offence is 5 years imprisonment.

In NSW, a court can impose any of the following penalties for this charge:


The offence of Trespass with or Dangerous Use of Firearms is contained in section 93H(1) of the Crimes Act 1900 and states:

  • A person who, possessing a firearm, imitation firearm, spear gun or imitation spear gun, enters any building or land (other than a road), unless the person:
    • is the owner or occupier of the building or land or has the permission of the owner or occupier, or
    • does so with a reasonable excuse, or
    • does so for a lawful purpose,

is liable to imprisonment for 5 years.


Examples of Trespass With Firearm include:

  • Entering a building site with a gun;
  • Climbing under your neighbours fence and walking across a paddock with a rifle to go hunting even though your neighbours told you they don’t want you hunting on their property;
  • Leaving a spear gun in your car for weeks after going spear fishing and going to watch a drive in movie; or
  • Walking through a shopping mall with a replica pistol stowed in the front of your pants.


To convict you of Trespass With Firearm the prosecution must prove each of the following matters beyond reasonable doubt:

  • That you were in possession of a firearm, spear gun, replica firearm or replica spear gun; and
  • That you entered a building or land.


The common ways to defend this charge are:

  • To maintain your innocence if you did not commit the act;
  • To argue that you were not ‘in possession’ of the firearm, spear gun, replica firearm or replica spear gun;
  • To argue that you were the owner or occupier of the land or building;
  • To argue that you had the permission of the owner or occupier of the land or building;
  • To argue that you had a reasonable excuse for possessing the firearm, spear gun, replica firearm or replica spear gun;
  • To argue that you were in possession of the firearm, spear gun, replica firearm or replica spear gun for a lawful purpose; or
  • To raise necessity or duress as the reason for your conduct.


The charge is a table two offence which means that the matter will be finalised in the Local Court unless the Director of Public Prosecutions elects to have the matter finalised in the District Court.

If the matter is finalised in the Local Court the court can only impose a maximum penalty of two years imprisonment.

Types of penalties:

Jail: This is the most serious penalty for this charge and involves full time detention in a correctional facility. Read more.

Home Detention: Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. Read more.

Intensive correction 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.

Periodic detention (commonly known as weekend detention): This form of imprisonment ceased to be a sentencing option in October 2010.

Suspended sentence: 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): 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: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.

Fines: When deciding the amount of a fine for a trespassing with a firearm or speargun charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set. 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.

where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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