Possession or use of a prohibited weapon is serious offence carrying a significant maximum penalty of 14 years imprisonment (2 years if dealt with in the Local Court).
The Weapons Prohibition Act 1998 makes it an offence to possess or use a prohibited weapon unless the person holds a permit to possess or use the weapon. Importantly, even if a permit is held, if the possession or use of the weapon is found to be otherwise than in connection with the genuine reason for possessing the weapon, or if a condition of a permit is breached, the person still commits an offence.
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Generally, however, most people who are charged with this offence do not have a permit. The offence is a Table 2 offence which means it can be finalised in the Local Court or District Court. See our section on Local Court and District Court.
What is a ‘prohibited weapon’?
A list of prohibited weapons is provided for in Schedule 1 of the Weapons Prohibition Act 1998. The list includes flick knives, grenades, crossbows and blow-pipes. It also includes less commonly thought of items such as silencers, body armour vests and tyre deflation devices.
If the weapon is listed in the Schedule, it is a prohibited weapon for the purposes of the Act.
As with any criminal offence, the prosecution must establish each element of the offence beyond reasonable doubt. It is a defence to this offence if the person can establish that they either had a valid permit and that the use or possession was in accordance with that permit. It is also a defence if the person can establish that they were in the process of surrendering the weapon. Section 28 of the Weapons Prohibition Act 1998 puts a positive obligation on a person who comes into unauthorised possession of a prohibited weapon. That person must immediately surrender the weapon to police. Failure to do so is an offence carrying 12 months imprisonment.
Importantly, section 28(2) states that:
“person does not contravene any other provision of this Act just by delivering or surrendering a prohibited weapon in accordance with this section”.
So, if a person can establish that they were in the process of immediately surrendering a weapon they have come into possession of, they have not committed the offence of possessing a prohibited weapon.
If the weapon was found in a common area, for example a lounge room used by a number of people, the prosecution must rule out the other occupants and prove that the weapon was under the effective control of the person charged. This is often disputed and at times difficult for the prosecution to prove.
The defence of self defence is also available to a charge of possessing a prohibited weapon.
The penalty imposed will depend on a number of factors including the weapon involved, the method of concealment, and whether it was used in the commission of any offences Your personal circumstances will also be relevant, as will your criminal history.
As with any offence, even after a finding of guilt a court can still decide not to record a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999. Click here for more information: AVOIDING A CONVICTION IN NSW
For a free, no obligation consultation to discuss your matter, contact one of our criminal law specialists.