Going Armed as to Cause Fear

Going armed as to cause fear is created by section 69 of the Criminal Code Act 1899 which provides for a maximum penalty of 2 years imprisonment and states:

“(1) any person who goes armed in public without lawful occasion in such a manner as to cause fear to any person is guilty of a misdemeanour, and is liable to imprisonment for 2 years.”

This offence captures those situations where the object in the person’s possession, is one outside the standard definition of a weapon.

What Does “Armed” Mean?

Armed, for the purposes of section 69 of the Act, has a wide meaning and is not necessarily limited to carrying items defined as weapons (for example, items contained in the Act and associated Regulations).

It is the manner in which the object is used that will establish the commission of the offence. Carrying some ordinary items, can in some circumstances amount to being ‘armed’ if their carriage in public is particularly out of place or occurs in such circumstances as to give rise to a reasonable sense of fear in the general public.

What Actions Might Constitute Going Armed as to Cause Fear?

• Walking through a shopping centre brandishing a barbeque fork.
• Raising a cricket bat at a person who just stole your car park.
• Holding a sharp stick toward a passenger next to you in an aircraft.

What the Police Must Prove

In order to convict you of the offence of going armed as to cause fear it must be proved that:

• you were in public; and
• at the time you were in public you were armed; and
• the circumstances of your being armed in public were such as would cause a reasonable person fear; and
• you were without lawful occasion.

It is not necessary for the prosecution to establish that any person actually was in fear because of your going armed in public, just that your going armed, in the circumstances, would reasonably be expected to cause fear.

Possible Defences to Going Armed as to Cause Fear

• You were not “armed” eg – the object was not in your possession;
• It was not a public place;
• No “reasonable” person would be in fear in the circumstances;
• Identity – you were not the person holding the object at the time;
• You had lawful occasion – eg. using a rifle to shoot a rabbit, dog or wild pig. Firing a shot harmlessly in the air in order to stop people attacking another person may also be sufficient to satisfy lawful occasion.

Will a Conviction be Recorded for Going Armed as to Cause Fear?

It is prudent to assume that a criminal conviction will be recorded against your name if you are found guilty of going armed as to cause fear, but it is not inevitable. It might be possible to argue that a conviction should not be recorded against you if the circumstances of your offence were something out of the ordinary, or if there are special reasons why the disadvantages of a criminal conviction are disproportionate to the circumstances of your case.

Competent legal advice and representation can often make the difference between a conviction being recorded, or not, and the Armstrong Legal criminal law team stand ready to assist you if you have been charged.

Which Court Will Hear Your Matter?

All charges of going armed as to cause fear will be heard and determined in the Magistrates Court.

Types of Penalties

Imprisonment: Even though it is not a sentence of last resort (as it is in some other states) imprisonment is the most serious penalty which a court can impose upon a person. At its most severe a sentence of imprisonment means that a person must spend a specified period of time within a correctional facility, also called a prison, a jail or a gaol.

Intensive corrections order (ICO): An Intensive Corrections Order is, technically, a form of imprisonment but which is served wholly in the community. This means that a person who is made subject to an ICO will not spend any time in prison but will, instead, be required to adhere to a number of requirements that the court will order.

Probation: A court can make a Probation Order either by itself, meaning the whole of the sentence is probation, or as a component of a sentence of imprisonment, meaning that a person is ordered to serve a period of time (not longer than 1 year) in prison and is then subject to a probation requirement upon release.

Community service order (CSO): As the name implies, a Community Service Order is an order which requires a person to perform unpaid work, normally at some kind of community facility, for a stated number of hours (to a maximum of 240) within a nominated time (usually 6 or 12 months).

Recognisance: A recognisance is a promise which a person makes to be of good behaviour for a stated period of time. A court is empowered to release a person who enters into a recognisance, either with a surety, which is a sum of money which the person agrees to pay if they breach the recognisance, or without one.

Fines: A court is empowered to impose a fine, which is a sum of money which a person is required to pay to the State, for any offence regardless of whether the law creating it nominates a fine as part of the applicable penalty.

Section 19 dismissal: A court can discharge a person absolutely, or upon them entering into a recognisance, without recording a conviction against them, if it is satisfied that it is appropriate to do so.

In all cases where you are sentenced to a penalty other than jail, the court can choose not to record a conviction against you, meaning your criminal record will remain clear and any complications with work or travel may be avoided.

For advice or representation in any legal matter, please contact Armstrong Legal.