Tresspassing with or Dangerous Use of Firearm or Speargun

The offence of ‘trespassing’ or ‘entering any land or building with possession of firearm or speargun’ is contained in Section 93H(1) of the Crimes Act 1900. The maximum penalty for this offence is 5 years imprisonment. The offence of ‘dangerous use’ or ‘firing firearm or spear gun in or into any building’ is contained in Section 93H(2) of the Crimes Act 1900. The maximum penalty is 10 years imprisonment. 

What is Trespassing with or Dangerous Use of Firearm or Spear Gun?

As the name of the offence indicates, the Crimes Act 1900 makes it an offence for a person to enter private property without permission while in possession of a firearm, speargun or imitation of those items. The Act creates a more serious offence (which carries a higher maximum penalty) for a person to fire a firearm, speargun or imitation of those items in or into any private property. 

The following acts constitute Trespassing With or Dangerous Use of Firearm or Spear Gun: 

• Entering your neighbours property with a hunting rifle to access a hunting track without their permission,
• Practicing shooting your speargun at a private beach or marina,  
• Taking your spear gun to your neighbours house without their permission. 
• Shooting a gel-blaster at your friend’s house.

What Must Be Proven?

For a person to be found guilty of Trespassing With or Dangerous Use of Firearm or Spear Gun the Prosecution must prove each of the following matters beyond a reasonable doubt:

• The person, 
• Possessed,
• A “firearm”, imitation firearm, “spear gun” or imitation spear gun, and
• Entered any dwelling or land. 

For a person to be found guilty of dangerous use of a firearm or spear gun the Prosecution must prove each of the following matters beyond a reasonable doubt:

• The person, 
• Fired, 
• A “firearm”, imitation firearm, “spear gun” or imitation spear gun, 
• In or into any building or on to any land. 

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. 

Section 7 of the Crimes Act 1900 deems a person to be in “possession” of the firearm if they had the property in his or her custody, or knowingly has any such property in the custody of another person, or knowing has any such property in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or herself or not, and whether such property is there had or placed for his or her own use, or use of another. 

A “dwelling-house” is defined in the Crimes Act 1900 to include:

1. any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied,
2. a boat or vehicle in or on which any person resides, and
3. any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house.

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?

Both the Trespassing With and Dangerous Use of a Firearm, Spear Gun are Table 2 offences, 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 Trespassing With or Dangerous Use of Firearm or Spear Gun charge:

• The person did not “possess” a firearm, spear gun or imitation of either,
• The person did not “fire” a firearm, spear gun or imitation of either. 
• The item was not a “firearm”, nor “spear-gun” nor “imitation” of either,
• The person is the owner or occupier of the building or land, 
• The person has permission of the owner or occupier of the building or land, 
• The person did so with a reasonable excuse, 
• The person did so for a lawful purpose. 

The Act states that the onus on proving the above defences lies with the Defendant. This means the person charged with the offence is required to prove to the Court that they were the owner/occupier, had permission, did so with a reasonable excuse or lawful purpose. 

Common Questions about Trespassing with or Dangerous Use of Firearm or Spear Gun:

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely. 

In NSW, a Court can impose any of the following penalties for a Trespassing With or Dangerous Use of Firearm or Spear gun 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 Trespass With or Dangerous Use of Firearm, Spear Gun charge 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 Trespass With or Dangerous Use of Firearm, Spear Gun depends very much on the circumstances of their individual matter, whether it is a standalone offence or there are other associated charges and that person’s criminal history. 

For example, someone who fires multiple rounds of a firearm into a private home when people are inside would be treated more seriously by the Courts than a person who was carrying a spear gun and associated diving gear and walked through another’s back yard to access a remote spear fishing location when no-one else was around. 

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