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Firearms offences are serious criminal offences due to their risk to public safety. After the Port Arthur Massacre in Tasmania in 1996, where 35 people were shot and killed while a further 18 people were wounded, Australian states and territories worked together to provide a national approach to firearms regulation and firearms legislation.

Being charged and convicted of a firearms offence or an indictable offence involving a firearm can have a significant long-term impact on your life. These offences are prosecuted under the criminal law which means that if you are found guilty, you will have a criminal record. That can impact your employment, family law proceedings, overseas travel, etc. If you are convicted of an offence contained in the Crimes Act 1900 (NSW) that involves the use of a firearm, it escalates the offence to an aggravated offence. This can result in an increased risk of imprisonment.

Firearms regulation:

In Australia, the Commonwealth is responsible for regulating the importation of firearms while the states and territories are responsible for regulating the use and ownership of firearms.  In New South Wales, the use and ownership of firearms is regulated by the Firearms Act 1996 (NSW) and Firearms Regulation 2017 (NSW). Additional firearms related prohibited weapons such as firearm parts (e.g. silencers), imitation weapons, etc are regulated by the Weapons Prohibition Act 1998 (NSW).

In NSW, firearm offences are prosecuted using both fines and imprisonment depending on the seriousness of the offence. The court takes into consideration:

  • The number of firearms
  • The number of firearms that are pistols or prohibited
  • The nature and type of firearms
  • The purpose for possessing the firearms
  • Whether there is evidence of any relationship between possession of the firearms with the drug industry
  • Location and security of property under which the firearms are kept

Fines are calculated using penalty units set out in the legislation. In NSW, each penalty unit is equal to $110. For example, 50 penalty units equal a fine of $5,500. For most firearm offences, it is up to the discretion of the prosecution whether your matter will be dealt with summarily or on indictment. The prosecution is required to prove the offence beyond a reasonable doubt, meaning they have to prove all elements of the offence.

COVID-19 has impacted licence holder obligations under the regulations. To ensure licence holders are not unnecessarily prosecuted for failing to meet these obligations, the Firearms Registry has put in place measures such as extending the 12 month compliance period. For more information, go to the Firearms Registry

The following information relates to general personal use and possession of a firearm. If you are an organisation, firearms dealer or have been charged with Commonwealth firearms offences, contact our office for legal advice specific to your circumstances.

What are the types of Criminal Offences?

There are generally 2 types of criminal offences.

1. Summary Offences

These are offences which are considered less serious. The Summary Offences Act 1988 NSW sets out the offences that are considered summary in the criminal justice system, and the penalty for each offence. These include:

  • Offensive Behaviour:
    • Offensive conduct
    • Offensive language
    • Obscene exposure
    • Obstructing traffic
    • Unauthorised entry of vehicle or boat
    • Damaging fountains
    • Damaging or desecrating protected places
    • Climbing on or jumping from buildings and other structures
    • Continuation of intoxicated and disorderly behaviour following move on direction
    • Possession of liquor by minors
    • Violent disorder
  • Dangerous Behaviour:
    • custody or use of knives and offensive implements
    • custody or use of laser pointers
    • Loitering by convicted child sexual offenders
    • Intimidatory use of vehicles and vessels
    • Prostitution
    • Minors in sex clubs
    • Unauthorised Public Assemblies
    • Hunting on private land

The Crimes Act NSW 1900 also contains a list of summary offences including:

  • Stealing and Similar Offences
  • Robbery
  • Demanding property with intent to steal
  • Sacrilige and housebreaking
  • Larceny
  • Stealing motor vehicle, vessel or trailer
  • Embezzlement or Larceny
  • Receivers, such as receiving stolen property

Firearms offences

Licensing and registration

Unauthorised possession or use of pistols or prohibited firearms

You must not possess or use a pistol or prohibited firearm unless you are authorised to do so by a licence or permit.

The maximum penalty for this offence is 14 years imprisonment

If you hold a licence, you are guilty if you:

Use a pistol or prohibited firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the pistol or prohibited firearm, or

Contravene any condition of the licence

The maximum penalty for this offence is 14 years imprisonment.

The standard non-parole period period for this offence is 4 years for offences for offences committed on or after 21 August 2015. If an offence was committed before this date, the standard non-parole period is 3 years.

Offence of unauthorised possession or use of firearms generally

You must not use or possess a firearm unless you are authorised to do so by licence or permit.

The maximum penalty for this offence is 5 years imprisonment.

If you hold a licence, you are guilty if you:

Use a pistol or prohibited firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the pistol or prohibited firearm, or

Contravene any condition of the licence.

Possession means you knowingly:

Have custody of the firearm,

Have the firearm in the custody of another person, or

Have the firearm in or on any premises, place, vehicle, vessel, or aircraft whether or not it belongs to or is occupied by you.

Unregistered firearms

You must not supply, acquire, possess or use a firearm that is not registered.

The maximum penalty for this offence is 14 years imprisonment if the firearm is a pistol or prohibited firearm or 5 years imprisonment in any other case.

It is a defence if you can prove that you:

Did not know, or could not reasonably be expected to have known, that the firearm was unregistered, and

You were not the owner of the firearm at the time of the offence

If you are a licence firearms dealer who has taken possession of an unregistered firearm and you apply to register it within 24 hours of acquiring or taking possession of it

You are the licence owner of the firearm in another Australian state or territory.

Requirements relating to registered firearms

If a firearm is registered in your name:

You must produce the firearm for inspection by a police officer at any reasonable time when requested to do so by that officer, and

You must, if the firearm is lost or supplied by, or stolen from, that person, immediately notify a police officer of the supply, loss or theft of the firearm and provide the Commissioner, with 7 days after the firearm is supplied, lost or stolen, with particulars of the supply, loss or theft in accordance with the regulations.

With the exception of licensed firearms dealers, if you acquire a firearm from another person, you must prove the Commissioner particulars of the firearm in accordance with the regulations within 7 days.

The maximum penalty for this offence is a fine of $5,500.

Alteration of notice of registration

You must not alter any of the particulars of set out in a notice of registration issued.

The maximum penalty for this offence is a fine of $5,500, imprisonment for 2 years or both.

Safekeeping of firearms

General requirement

If you possess a firearm you must take all reasonable precautions to ensures:

It’s safekeeping, and 

That it is not stolen or lost, and 

That it does come into the possession of a person who is not authorised to possess the firearm.

The maximum penalty for this offence is a fine of $5,500, 2 years imprisonment or both if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or pistol or $2,200, or 12 months imprisonment or both for any other case.

Category A and category B licence requirements

Category A licenses apply to:

  • Air rifles
  • Rimfire rifles (other than self-loading)
  • Shotguns (other than pump action shotguns, lever action or self-loading)
  • All prohibited firearms

Category B licences apply to:

  • Muzzle loading firearms (other than pistols)
  • Centre-fire rifles (other than self-loading)
  • Shotgun/centre-fire rifle combinations
  • Lever action shotguns with a magazine capacity of no more than 5 rounds
  • All prohibited firearms

If you are the holder of a category A or category B licence you must comply with the following requirements in respect of any firearm to which the licence applies:

When any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hardwood or steel and not easily penetrable

If a receptacle is less than 150kg when empty, it must be fixed in order to prevent its easy removal.

The locks on the receptacle must be solid metal and of a type approved by the Commissioner

Any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing the firearm

Any other requirements relating to security and safe storage as may be required by the regulations.

The maximum penalty for this offence is a fine of $2,200, 12 months imprisonment or both.

If you are a licensee, you do not have to comply with these requirements if you can prove to the Commissioner that you have an alternative arrangement for the storage of the firearm in your possession that is of a standard not less than the requirements set out above.

Category C, D and H licence requirements

Category C licences apply to:

  • Self-loading rimfire rifles with a magazine capacity of no more than 10 rounds
  • Self-loading shotguns with a magazine capacity of no more than 5 rounds
  • Pump-action shotguns with a magazine capacity of no more than 5 rounds

If you carry out farming or grazing activities, this licence category allows you to possess or use:

  • No more than one registered self-loading rimfire rifle with a magazine capacity of no more than 10 rounds specified by the licence, and 
  • No more than one registered shotgun to which the licence applies,

But only for the purpose established by the licences as being the genuine reason for possessing or using the firearm and only on land used for primary production that is owned or occupied by you. Under special circumstances, the limit on the number of weapons may be increased. 

 Category D licences (prohibited except for official purposes) apply to:

  • Self-loading centre-fire rifles
  • Self-loading rimfire rifles with a magazine capacity of more than 10 rounds
  • Self-loading shotguns with a magazine capacity of more than 5 rounds
  • Pump-action shotguns with a magazine capacity of more than 5 rounds
  • Lever action shotguns with a magazine capacity of more than 5 rounds
  • Any firearm to which Category C applies

Category H licences (pistols) apply to:

  • Pistols (including blank fire pistols and air pistols)

If you hold a category C, D or H licence you must comply with the following requirements with respect to any firearm to which the licence applies:

When any such firearm is not actually being used or carried, it must be stored in a locked steel safe of a type approved of by the Commissioner and that cannot be easily penetrated,

Such a safe must be bolted to the structure of the premises where the firearm is authorised to be kept, 

Any ammunition for the firearm must be stored in a locked container approved by the Commissioner and that is kept separate from the safe containing any such firearm,

Such other requirements relating to security and safe storage may be prescribed by the regulations.

The maximum penalty for this offence is a fine of $5,500, imprisonment for 2 years or both.

You do not need to comply with the above if you can prove to the Commissioner that you have alternative arrangements for the storage of the firearm that is of a standard not less than the requirements set out. 

Prohibited firearms

Prohibited firearms include:

  1. Any machine gun, sub-machine gun or another firearm capable of propelling projectiles in rapid succession during one pressure of the trigger
  2. Any self-loading rimfire rifle 
  3. Any self-loading centre-fire rifle 
  4. Any self-loadingpump action shotgun
  5. Any lever action shotgun with a magazine capacity of more than 5 rounds
  6. Any self-loading centre-fire rifle of a kind that is designed or adapted for military purposes
  7. Any firearm that substantially duplicates in appearance (regardless of calibre or manner of operation) a firearm that is referred to in point 1, 5 or 6
  8. A firearm, not being a pistol, of the Uberti or Armi-Jager brands, or any similar firearm fitted with a revolving ammunition cylinder (other than a firearm manufactured before 1920)
  9. A shotgun fitted with or designed to be fitted with a drum magazine of the “Striker 12” assault shotgun type or any similar weapon
  10. Any firearm to which there is attached any article or device capable of muffling, reducing or stopping the noise created by firing the firearm
  11. A firearm, not being a pistol, fitted with a stock that is specially designed so as to be readily detachable, or to operate on a swivel, folding or telescopic basis
  12. A firearm made up in the form of a stylographic or propelling pen or pencil, capable of being used for the discharge of gas, bullets, shot, dye, or pyrotechnic flares
  13. A firearm capable of discharging by any means any irritant matter in liquid, powers, gas or chemical form; or any pyrotechnic flare or dye
  14. A firearm that substantially duplicates in appearance some other article (such as a walking stick, walking cane or keyring) and disguises or conceals that fact that it is a firearm
  15. A cannon or other weapon by whatever name known of a type which will expel a projectile by the action of an explosive or other propellant, and which has a barrel with a bore in excess of 10 gauge, not being a firearm of the Very or rocket type designed and intended for use for life saving or distress signalling purposes, an antique muzzle loading firearm, or a rifle or shotgun manufactured before 1920
  16. Any firearm which, or part of which, has a dimension less than the minimum dimension prescribed for the firearm or part by the regulations
  17. Any device known as a “powerhead” that can be attached to the end of a speargun and that is designed to propel a projectile by means of an explosive

Prohibited firearms related weapons

The Weapons Prohibition Act 1998 (NSW) regulates firearm related weapons. They are:

  • Silencers, or any other device designed for attachment to a firearm for the purpose of muffling, reducing, or stopping the noise created by firing the firearm.
  • A detachable firearm magazine of any of the following kinds:
  • A rimfire rifle magazine with a capacity of more than 15 rounds
  • A centre-fire rifle magazine with a copy of more than 5 rounds
  • A centre-fire rifle magazine (other than a self-loading rifle magazine with a capacity of more than 10 rounds
  • A shotgun magazine with a capacity of more than 5 rounds
  • A tubular magazine extension that is capable of extending the capacity of any firearm
  • A pistol magazine with a capacity of more than 10 rounds
  • Any magazine designed to be attached to any machine gun, sub-machine gun, or other firearms that are capable of propelling projectiles in rapid succession following one pressure of the trigger.

Any article or device, such as a device known as a brass catcher, that is designed to be attached to a firearm for the purpose of catching ejected cartridge cases when the firearm is being fired.

Summary Court Process (Local Court)

If you matter is prosecuted summarily, it will proceed through the Local Court. The process is as follows:

  1. Contact Jameson Law for a free initial consultation 
  2. Mention hearing: This is the first court date for your matter. It essentially brings it to the attention of the court. You can plead guilty at this stage after receiving legal advice and the matter will be finalised. If you plead not guilty, the court will adjourn your matter and set another court date. The court will set a date for each party to produce their evidence (brief mention)
  3. You should use this time to gather any supporting evidence such as character references.
  4. Brief mention: Each party must produce their evidence to the court and each other. Another court date will be set for hearing
  5. Hearing: both parties will present their argument to the court. The court will make their decision and issue a sentence where appropriate.

Sentencing options available in the Local Court

Section 10

A section 10 is the best possible outcome in the event the court finds you guilty of a firearms offence. There are three orders available to the court under section 10 of the Crimes (Sentencing and Procedure) Act where the court believes it is inappropriate to further punish an offender.

  • Section 10 (1) (a)- dismissal with no conviction recorded
  • Section 10 (1) (b)- dismissal with no conviction on conditions set by the court. For example, not to commit an offence for a period of two years 
  • Section 10 (1) (c)- dismissal with no conviction on the condition that the offender enters into an intervention program. For example drug and alcohol counselling. 

A section 10 is an acknowledgement of the court that you have committed an offence, however, the court is satisfied that it is out of character and you are unlikely to continue offending. It’s the court’s way of giving you a second chance.

Before granting a section 10, the court will consider:

  • Your criminal record. 
  • Your character, antecedents, age, heath and mental condition, etc
  • The trivial nature of the offence
  • Extenuating circumstances that lead to the offence being committed 
  • Any other matter the court considers relevant

Intensive Correction Order

Intensive Corrections Orders are an option available to the court where a sentence of imprisonment is imposed on the condition that a defendant is of good behaviour and agrees to supervision by a community corrections officer rather than go to prison. 

Additional conditions that may be imposed by the court include:

  • home detention
  • electronic monitoring
  • curfew
  • community service (up to 750 hours)
  • participation in rehabilitation or treatment programs, for example drug treatment/counselling
  • no drugs or alcohol
  • refrain from certain relationships/associations, for example drug dealer, etc.
  • ban from certain locations

Community Correction Order

Community Corrections Orders are similar to Intensive Corrections Orders. The main exception being that a defendant needs to make themselves available to attend court at any time the court requires.

Conditional Release Order

A Conditional Release Order is similar to an Intensive Corrections Order or Community Corrections Order. A Conditional Release Order can be issued with or without a conviction recorded.

Section 32

A section 32 is a diversionary option available under the Mental Health (Forensic Provisions) Act 1990 (NSW). If a defendant is, or at the time the firearms offence occurred:

  • cognitively impaired
  • suffering from mental illness
  • suffering from a mental condition for which treatment is available in a mental health facility

The options available to a magistrate under a section 32 include:

  • adjourning the matter
  • granting the defendant bail
  • any other order the magistrate deems appropriate
  • dismissing the charges and discharging the defendant into the care of a responsible person (e.g. a parent) on the condition they attend a specified place for assessment or treatment.

Indictable Court Process (District Court or Supreme Court)

If the prosecution prosecutes your matter on indictment, your matter will be held by either the District Court or Supreme Court depending on the serious of your matter. The process is as follows:

  1. Contact Jameson Law for a free initial consultation
  2. Bail: An application for bail may need to be made if bail isn’t granted earlier
  3. Committal hearing: This a hearing to determine if there is enough evidence to proceed to trial. If there isn’t enough evidence, that is the end of the matter. If there is enough evidence, the matte is adjourned and a new court date is set.
  4. Case conferences: may take place between the committal and the trial. 
  5. Trial: Both parties will present their argument to the court. This can take a number of weeks or months depending on the seriousness of the matter and the number of charges. The jury will make a determination of guilt. If they find you guilty, the court will adjourn and a new date set for sentencing. This gives the judge an opportunity to review the evidence and work out the most appropriate sentence. The court may ask for additional information to inform sentencing such as pre-sentencing reports from Corrective Services, etc.
  6. Sentencing: The judge will hand down his or her sentence and their reasons for the decision.

Disclaimer:

The above is general legal information and should not be considered legal advice. You should speak with one of our criminal lawyers for legal advice tailored to your specific legal matter. The penalties listed are maximum penalties. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.

Frequently Asked Questions.

There are many lawful reasons why you may need to dispose of a firearm. For example, you have a valid licence or permit but no longer require a firearm or you inherited the firearm as part of an estate. 

You can dispose of a firearm with a registered firearms dealer if you are the registered owner and you have the Firearm Registration Certificate. The dealer will complete the Notice of Disposal and you must send a copy of it to the Firearms Registry within 7 days. 

If you are not the registered owner of the firearm you can surrender it via unconditional surrender to Police. If you are in the possession of firearms as a result of being an executor or administrator of a deceased estate, you must notify the Commissioner of the death by providing a copy of the death certificate and comply with the firearms regulations until the firearm is surrendered. If you do not comply with the regulations, the maximum penalty is a fine of $5,500.

A police officer is authorised to seize any firearm in your possession if your licence is suspended, revoked or otherwise ceases to be in force. A police officer is also authorised to seize your licence.

Using an imitation firearm is a serious offence. Members of the public who are untrained in firearms are unable to differentiate between a real firearm and an imitation firearm. The maximum penalty for being in possession of an imitation firearm is 14 years. It should be noted that this penalty is in addition to penalties for the criminal offence you have been charged with.

You must have a genuine reason to apply for a firearms licence. A genuine reason DOES NOT include:

  • To protect yourself or others, or
  • To protect property

Genuine reasons include:

  • Sport or target shooting
  • Recreational hunting or vermin control
  • Primary production (farming)
  • Vertebrate pest animal control (e.g. wild boars, kangaroos, etc)
  • Business or employment (e.g. security guard, commercial fishing, etc)
  • Rural occupation
  • Animal welfare (e.g. veterinary practitioner, RSPCA, handler of animals – drover, transporter, etc)
  • Firearms collector

You MUST be able to produce evidence of the genuine reason. For example a letter from your employer on an offical letterhead, club membership card, etc.

You must have evidence of your genuine reason if you are applying for a licence above a category A. This includes club membership, security licence, current firearms training and safety certificates, etc. 

Eligibility:

You MUST be over the age of 18.

You MUST be a fit and proper person. That means you cannot:

  • Be subject to an AVO. You will not be able to apply for an AVO for up to 10 years after the AVO expires.
  • Be subject to an interim AVO.
  • Be subject to a Good Behaviour Bond for a prescribed offence (firearms, weapons, drugs, fraud, steeling, dishonesty, restricted substances, terrorism, violence, public order, assault against law enforcement officers, robbery, organised crime groups and recruitment, riot, affray, sexual assault offences).
  • Be subject to a firearms or weapons prohibition order
  • Be a registrable person or in contact with a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW).
  • Be convicted of an offence prescribed by the regulations.

Application process:

  1. Check to make sure you are eligible for a firearms licence
  2. Create a MyServiceNSW account and link it with NSW Police
  3. Complete the online application form
  4. Upload your supporting documents
  5. Pay the application fee 
  6. Complete the declaration
  7. Review and submit your application
  8. For new applicants, you will be required to wait the legislated 28 days from the date of your application
  9. You will receive notification from the Firearms Registry confirming your application is being processed
  10. If your application is successful, you will be sent a photograph request. You will need to attend a Service NSW service centre before the request expires to have your photo taken

If your application has been unsuccessful, you apply to NSW Police to have your application reviewed. 

Fees:

You can apply for a 2 year licence for $100 or a 5 year licence for $200. If you are applying for the first time, a 12 month probationary licence will be issued. 

A 12 month probationary pistol licence is $100

A 12 month provisional pistol (business/employment) is $250.

Pensioner and primary producers are exempt for certain licences.

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