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Possession of a Firearm

Possessing a pistol or prohibited firearm without the requisite licence or permit is a serious criminal offence. In the Firearms Act 1996 (NSW), there are three possible offences a person can be charged with if you have possession of a firearm or pistol and do not have the necessary licence or permit.

The offences are as follows:

  1. Section 7A of the Firearms Act provides that a person must not possess or use a firearm unless the person is authorised to do so by a licence or permit.

The maximum penalty that can be imposed in contravention of section 7A is 5 years imprisonment.

  1. Section 7(1) of the Firearms Act provides that a person must not possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit.

The maximum penalty that can be imposed in contravention of section 7(1) is 14 years imprisonment.

  1. Section 36(1) of the Firearms Act provides that a person must not supply, acquire, possess or use a firearm that is not registered.

The maximum penalty that can be imposed in contravention of section 36(1) is 14 years imprisonment if the firearm concerned is a pistol or prohibited firearm, or imprisonment for 5 years in any other case.

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What does “possession” of a Firearm mean?

Section 4A of the Firearms Act defines “possession” within the context of the Firearms Act. A firearm is taken to be in possession of a person so long as it is in or on any premises owned, leased or occupied by, or if the firearm is in the care, control or management of a person.

However, a person does not have “possession” of a firearm if:

  1. The firearm was placed in or on, or was brought into or on to, the premises by or on behalf of a person who was lawfully authorised to do so by the Firearms Act;
  2. You did not know or could not reasonably be expected to have known that the firearm was in or on the premises; or
  3. On the evidence before a Court, it could not be said you were in possession of the firearm

What is considered a prohibited firearm and a prohibited pistol?

A list of prohibited firearms can be found in Schedule 1 of the Firearms Act. Please click here for a list of the prohibited firearms under the Firearms Act.

A prohibited pistol includes:

  1. A pistol with a calibre of more than .38 inch
  2. A self-loading pistol with a barrel length of less than 120mm
  3. A revolver with a barrel length of less than 100mm

However, a prohibited pistol does not include any such kind of pistol that is a black powder pistol.

What are some examples that may constitute unauthorised possession of a firearm or pistol?

Most commonly, the reason a person would contravene one of the provisions outlined above is due to a person having possession of an unauthorised firearm or pistol without the requisite licence or permit.

However, an offence can be committed if you do have a firearm licence or permit, and you were using your firearm or pistol in a way that contravened a condition of your firearm licence.

For example, you are employed as a security guard or a police officer, and have been issued a firearm in the course of your employment. A friend has asked you to go recreational shooting on a farming property, and you have taken the firearm that you have been issued. It is likely that your firearms licence would not allow for you to engage in recreational shooting on a farming property. In this type of situation, you would be committing an offence.

Defences

If you have been charged with an offence relating to your unauthorised possession of a firearm or pistol then it is best to contact one of our experienced criminal defence lawyers to obtain advice as to whether a defence is available to you. This will depend on the circumstances of your case.

Some possible defences are:

  1. That the firearm you have in your possession does not fall within the definition of a firearm under the Act;
  2. That you had the proper licence to possess the pistol or firearm;
  3. That your licence allowed for you to use your firearm or pistol in the manner that you did;
  4. You could not have reasonably known that the firearm or pistol was on your premise; or
  5. The firearm was placed in or on, or was brought in to your premise, by a person who was lawfully authorised to do so.

There may also be additional defences available to you, depending on the circumstances of your case.

Potential Penalties

An offence in contravention of section 7A, section 7(1) and section 36(1) of the Firearms Act is considered a ‘Table 2’ offence. This means that the DPP can elect to prosecute the matter in the District Court.

Most commonly, an offence in contravention of section 7A, section 7(1) and section 36(1) of the Firearms Act will stay in the jurisdiction of the Local Court.

The type of sentence you may receive for a matter of this type will vary depending on the circumstances of your case. If you have been charged with an offence relating to the unauthorised or unlawful possession of a firearm or pistol, then please contact one of our experienced criminal defence lawyers to seek advice on the potential penalty you may receive.

For the full range of penalties that can be imposed, see our Sentencing Options page.