Firing at Dwelling-houses or Buildings (Aka Drive-by Shootings)

The offence of ‘Firing at Dwelling-Houses or Buildings’ is contained at Section 93GA of the Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment with a standard non-parole period of 5 years. Where a person fires at a dwelling-house or buildings during a “public disorder” or during “the course of an organized criminal activity” the maximum penalty is 16 years imprisonment with a standard non-parole period of 6 years.  

What is the Offence of Firing at Dwelling-House or Building?

The Crimes Act 1900 contains the offence for ‘drive-by shootings’ where a person fires a firearm at a dwelling-house or other building with reckless disregard for the safety of any person. Where a person involved in a public disorder or in the course of organised criminal activity fires a firearm at a dwelling-house or other building with reckless disregard for the safety of any person, they face the higher maximum penalty of 16 years imprisonment for their offence. 

What Must Be Proven?

For a person to be found guilty of the aggravated offence, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• A person fires, 
• A “firearm”, 
• During a “public disorder”,
• At a “dwelling house” or other building, 
• With reckless disregard for the safety of any person. 

For a person to be found guilty of Firing at Dwelling-House or Building the Prosecution must prove each of the following matters beyond a reasonable doubt:

• A person fires, 
• A “firearm”, 
• At a “dwelling house” or other building, 
• With reckless disregard for the safety of any person. 

For the offence to be proven, it is not necessary to prove that a person was actually put in danger by the firing of the firearm. 

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. 

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.

A “public disorder” is defined in the Crimes Act 1900 to mean a riot or other civil disturbance that gives rise to a serious risk of public safety, whether at a single location or resulting from a series of incidents in the same or different locations, and includes a riot or other civil disturbance at either a correctional centre or a detention centre. 

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 Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

Possible Defences:

The following defences may be available for a Firing at Dwelling-House or Building charge:

• That the item fired was not a “firearm”, 
• That the firearm was not fired at a “dwelling house” or other building, 
• That the firearm was not discharged with “reckless disregard for the safety of others”,
• Self defence. 

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 for a common assault 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 Firing at Dwelling-House or Building 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 Firing at Dwelling-Houses or Buildings will depend on the circumstances of their matter, however a gaol sentence would be a likely outcome due to the seriousness of the offence and the risk to public safety. 

How does the standard non-parole period apply?

This offence carries a standard non-parole period of 5 years imprisonment and where the offence occurs during a “public disorder” or during “the course of an organized criminal activity” there is an applicable 6-year standard non-parole period. 

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 5 or 6 years imprisonment for any and every offence of Firing at Dwelling-House or Building charge, 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.