Unauthorised Possession of Firearms in Aggravated Circumstances

The offence of ‘unauthorised possession of firearms in aggravated circumstances’ is contained at Section 51D of the Firearms Act 1996. Where a person is in possession of more than 3 firearms the maximum penalty is 10 years imprisonment. Where a person is in possession of more than 3 firearms and any of the items are a “pistol” or “prohibited firearm” the maximum penalty is 20 years imprisonment with a 10-year standard non-parole period. 

What is Unauthorised Possession of Firearms in Aggravated Circumstances?

The Firearms Act 1996 contains an aggravated offence of possession of firearms where a person has in their possession more than 3 firearms without authorization. 

The following acts constitute Unauthorised Possession of Firearms in Aggravated Circumstances:

• Displaying an antique but unregistered set of three World War II pistols which your grandfather gave you in the dining room.
• Keeping an unregistered pistol, rifle or shot gun in your gun safe when not authorized to do so under your firearms licence. 
• Having 3 or more gel blasters stored at your home.

What Must Be Proven?

For a person to be found guilty of Unauthorised Possession of Firearms in Aggravated Circumstances the Prosecution must prove each of the following matters beyond a reasonable doubt:

• The person was in “possession”,
• Of 3 or more “firearms”,
• That are not registered and
• The person does not have authorization through a licence or permit. 

Definitions: 

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 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 specified prohibited firearms is contained in Schedule 1 of 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 a charge of  Unauthorised Possession of Firearms in Aggravated circumstances:

• The person was not in “possession” of the firearms, 
• The items are not “firearms”
• The person had authorization for possession by way of a licence or permit. 

Common Questions

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:

• 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 Unauthorised Possession of Firearms in Aggravated Circumstances 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 Unauthorised Possession of Firearms in Aggravated Circumstances depends very much on the circumstances of their individual matter. 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 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 possesses 20 unregistered firearms, any of which are a pistol or prohibited firearm, with a record of prior violent offending or a record of possessing unauthorised firearms and never held a permit for these firearms would be treated more harshly and is more likely to receive a term of imprisonment compared to a person who possessed 3 firearms with a recently expired permit with no criminal history.

How does the standard non-parole period apply?

Where any of the three unregistered firearms are a pistol or prohibited firearm there is a standard non-parole period of 10 years imprisonment. Standard non-parole periods are legislative guideposts that are set by Parliament to indicate the seriousness of an offence and are required to be taken into account by the sentencing Magistrate or Judge when determining the appropriate sentence for the offence. A standard non-parole period does not mean a person will automatically be sentenced to 10 years imprisonment for any and every Unauthorised Possession of Firearms in Aggravated Circumstances offence, but it is an important sentencing factor that will be considered and weighed against the objective seriousness of the offence, the offender’s moral culpability and the offender’s subjective circumstances.   

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