Criminal Law

Unauthorised Possession of Firearm

There are more than several thousand licensed firearm owners in New South Wales who are lawfully authorised to possess firearms. This particular offence provision is in place mainly to allow police to charge those who come into possession of a firearm by unlawful means. However, too often we see generally law abiding citizens who get caught out by this particular offence provision, as well. Irrespective of the circumstances in coming to the attention of police and being charged, the penalties and ramifications for being found guilty of this offence can be severe.

The Law

Pursuant to section 7A of the Firearms Act 1996 a person must not possess a firearm unless the person has a licence or permit to do so.

A firearms licence authorises a person to possess and use firearms and there are several categories of firearms licence. A person is only permitted to possess a firearm within the category of licence held. 

Firearms permits are required for certain types of firearms and can be obtained for "special purpose" possession or use of some firearms. The definition of "firearms" includes such things as replica firearms and even paintball guns. Permits can be obtained for the possession or use of these types of firearms and a list of the types of permits that are required and information on how to obtain them can be found at the NSW Police List of Firearms Permits here

A permit must also be obtained whenever purchasing any type of firearm.

Penalties

The maximum penalty for the offence of unauthorised possession of a firearm is 5 years' imprisonment. If the offence is dealt with in the Local Court then the maximum penalty that can be imposed is 2 years' imprisonment for the one offence. Most matters are dealt with in the Local Court.

For more serious firearms offences, such as possessing a prohibited firearm or pistol, the maximum penalty is 14 years' imprisonment.

Commentary

Where firearms (usually unregistered and unlawfully obtained) are used in the commission of other serious crimes, then the persons involved are usually charged with a range of serious offences in addition to any firearms offences.

However, the offence of unlawful possession of a firearm is one that is frequently committed by fully licensed owners who are unaware that they are breaching the law or who do something with the best of intentions but without considering the legal implications.

Firearms ownership is a privilege, not a right, and the law imposes “strict controls on the possession and use of firearms” so as to promote and enhance public safety, by ensuring that as far as possible firearms are only possessed by persons of good character who have a legitimate purpose for owning a firearm, and also ensuring that the Police know all relevant details of the locations and numbers of firearms held.

One of the consequences of being a licensed firearms owner is that you will be exposed to a degree of scrutiny and inspection by Police, and if any irregularities or problems are found, you will be held to a very high standard - that is, as a licence holder you are expected to know and comply with the rules.

Common scenarios in which you may face a charge include:

1. Expiration of your licence: you would be surprised how common this is. If your licence expires then regardless of any other factor you are no longer entitled to own or possess firearms. We have even seen cases where licences have been renewed a week or two after expiry without any issue being raised, only to see the owner charged with unlawful possession because of that gap in time between expiry and renewal. When was the last time you checked your licence expiry date?

2. Change of address or storage location: If you move residence, or you move the storage location of your firearms but do not move residence yourself, you must notify the Firearms Registry of that change. Failure to do so is an offence.

3. Acquisition of firearms from friends or deceased estates: What would you do if a friend told you he had a firearm, or that his deceased grandfather had a firearm among his property, and he wanted you to take it off his hand “because you have a licence”? Never accept responsibility for someone else’s firearms. Refer them to the Police or a firearms dealer. Even if you have a valid licence, and even if your licence covers the appropriate category for the firearm you are being asked to take, if you do so it is your responsibility. It is probably in in these circumstances not registered, and it is certainly not registered to you and you do not have a permit for it. 

4. Acquisition of spare or replacement parts: It is an offence to possess or acquire “firearms parts” without a permit - this includes barrels, breeches, pistol slides, frames, receivers, cylinders, trigger mechanisms, operating mechanisms or magazines. For example, you may have a Category B or C rifle licence, and you may have a permit for the rifle you own, but if you were to buy a new barrel for that rifle you may be committing an offence. If, as we have seen on occasion, you were to purchase a spare or replacement item on the internet from an overseas retailer, you would also be committing customs and importation offences that may involve the Customs Service and/or the Federal Police even if the item you have purchased is one that you could have lawfully obtained over the counter from a firearms dealer here in NSW.

5. Imitation and Replica Firearms: The Firearms Act for the most part treats “imitation” firearms in the same way it treats genuine firearms-  this includes any object that “regardless of its colour, weight or composition or the presence or absence of any moveable parts, substantially duplicates in appearance a firearm”. So do not think that a model, replica or toy cannot create problems for you; and the more closely the “imitation” resembles the real thing, the more seriously the matter will be viewed by the Police and Courts.

In summary, to comply with the law you must hold a valid and current licence; all firearms you possess must be in the categories to which your licence applies; you must have a permit for the acquisition of each firearms in your possession, and each firearm must be registered.

With so many rules in place, it is easy to make a small mistake that has far-reaching consequences for you, your licence and potentially your livelihood. Should you find yourself charged with any firearms offence you should seek legal advice as soon as possible.

At Prime Lawyers, we understand that both your licence and your good name are important to you. Our criminal lawyers have considerable experience in dealing with a wide range of firearms matters, many of which involve people of outstanding character and background who would never have thought that one day they would be charged with serious offences and require the services of a criminal lawyer in facing the Court.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.


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