Firearms Offences and Penalties in New South Wales (NSW)

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New South Wales (NSW) has strict firearms legislation - the Firearms Act 1996 (NSW). This legislation regulates the possession and the use of firearms in New South Wales.

Breaking any of the stipulated rules amounts to a criminal offence that can attract severe penalties.

If an individual is convicted for a firearms offence, the offence will show up as a disclosable court outcome (DCO) on a New South Wales Criminal History Check result.

In this write-up, we will be taking a closer look at the different firearms offences and their corresponding penalties. First, however, to understand firearms offences and their punishments, we need to define firearms.

Meaning of Firearms

According to Section 4 of the Firearms Act 1996 (NSW), firearms generally refers to a gun or any other weapon that can propel a projectile using an explosive. Consequently, this involves a blank firearm or an airgun.

However, the airgun does not include a paintball marker or whatsoever the legislation declares not to be a firearm.

Firearms Offences

There are several offences enshrined in the Firearms Act 1996 (NSW). Each of the firearm offences comes with different penalties. Here are the crimes, including their penalties.

Unauthorised Possession or Use of Firearms

Section 7A of the Firearms Act 1996 (NSW) covers the unauthorised possession or use of firearms. This legislation states that:

• An individual must not use or own a firearm without authorisation. They can obtain such permission by getting a license or permit.
• A person must not use a firearm contrary to the reasons for possessing or using a firearm.

Also, a person commits a firearm offence if their firearm use contradicts the conditions stated in the license.

What the Prosecution Must Prove

In a case of unauthorised use of firearms, the prosecution has the duty of convincing the Court that the defendant committed the crime. This duty involves proving the following:

• The accused had no license at the time they used or owned a firearm; or
• The defendant had a license, but their use of firearms was illegal.

Also, the prosecution will have to prove that the accused's action concerning the use of the firearm does not align with the conditions included in the license they possess.

Defences to the Charge of Unauthorised Use or Possession of A Firearm

There are several defences the accused can raise when facing charges for unauthorised use or possession of a firearm. Some of these defences can result in the Court acquitting the defendant, while some could lead to the Court giving less severe punishment for the offence.

Here are the possible defences:

#1. Duress

The defendant could raise this defence if they possessed or used a firearm as a means of preventing a threat from being carried out. This means that another person must have compelled or coerced them into committing the crime.

However, for this defence to stand, the defendant will have to show the Court that an actual threat existed that would have led anybody to take similar action.

Also, they must show the Court that they committed the crime solely because of the threat perceived when the event took place. However, it is vital to note that this defence becomes ineffective if the accused could find a way to avert the threat but still choose to commit the crime.

#2. Self Defence

In a situation where the accused, without authorisation, used a firearm to protect themselves from danger, they can claim this line of defence.

However, for the defendant to successfully use this defence, they will have to show the Court that there was an impending danger and their response to it was proportional to the threat perceived.

Penalties to the Charge of Unauthorised Possession or Use of Firearms

According to Section 7A of the Firearms Act 1996 (NSW), the maximum penalty for the crime of using or possessing a firearm without authorisation is five years imprisonment. However, due to the peculiarity of the case, the Court may decide to give a less severe punishment.

Unauthorised Use or Possession of Prohibited Firearms

Prohibited Weapon Schedule 1 lists weapons that the law prohibits. Possessing or using any of these banned weapons requires having a permit. This rule is evident in Section 7 of the Weapons Prohibition Act 1998 (NSW), which states that:

• An individual must not use or own a prohibited firearm without authorisation, i.e., a license or permit.
• A person who has a license to possess or use a prohibited firearm can be guilty of a firearm offence if their firearm use contradicts the purpose of owning the prohibited firearm.

Also, the Court can convict an individual of a firearm offence if their use of the banned firearms goes against what their license allows.

What the Prosecution Will Need to Prove

Like in every criminal trial, the prosecution has the legal obligation to prove that the accused committed the crime beyond a reasonable doubt.

In a case of unauthorised use or possession of prohibited firearms, the prosecution will need to show that:

• The defendant possessed or used a prohibited weapon.
• They used the weapon without authorisation.
• If the accused had authorisation, they must have used the prohibited weapon contrary to the purpose of having the weapon. The defendant would also be guilty of the crime if they used the prohibited firearm outside the conditions stated in their license or permit.

Possible Defences to the Charge of Unauthorised Use or Possession of Prohibited Firearm

There are various defences to the charge of unauthorised use or possession of prohibited firearms. Some of these are:

#1. Self Defence

This defence is suitable in a case where the accused used or possessed a prohibited firearm to protect themselves or someone else from impending danger. However, the accused will have to show the Court that they believed there was impending danger. Also, they will need to prove that their response was not an overreaction to the threat perceived.

#2. Duress

Under this defence, the accused can claim that they committed the crime of possessing or using a prohibited firearm without authorisation because of a threat made towards them.

For this defence to be effective, the defendant must show the Court that they believed the threat to be genuine. Also, they must prove that the threat could result in serious harm.

Penalties for the Crime of Unauthorised Use or Possession of Prohibited Firearms

In NSW, the crime of unauthorised use or possession of prohibited firearms carries a maximum penalty of 14 years imprisonment. However, depending on the circumstances of the case, the Court can decide to give a less severe punishment, sometimes different from being put in jail.

Giving an Unauthorised Person a Firearm or a Part of a Firearm to Possess or Use

Section 50B of the Firearms Act 1996 (NSW) states that:

• A person must not give another individual a firearm unless the individual has a permit or license to possess a firearm.
• An individual must not give another person a part of a firearm unless the recipient has a permit and the piece relates to the firearm they possess.

What the Prosecution Must Prove

Where the state charges a person with the crime of allowing an unauthorised individual to possess or use a firearm, the prosecution will need to prove the following:

• The defendant gave a firearm or a part of it to another individual.
• The recipient of the firearm was unlicensed when they got the firearm.

Defences to the Crime

There are defences available to a person facing giving possession of a firearm or its part to a person who is unauthorised to possess such charges. These defences include self-defence and duress.

In the case of self-defence, the accused will need to show that they gave an unauthorised person a firearm to protect themselves from physical harm. Also, they will need to prove to the Court that their action was an adequate response to the danger perceived.

As for duress, the accused will have to convince the Court that their action resulted from the threat. They must also show the Court that their action was the appropriate response to the threat perceived.

Penalties to the Crime of Giving possession of firearms or firearm parts to an Unauthorised Person

As contained in Section 50B of the Firearms Act 1996 (NSW), giving possession of firearms or firearm parts to an unauthorised individual is punishable with a maximum of 5 years imprisonment. If the firearm is a prohibited weapon, the possible penalty increases to a maximum of 14 years imprisonment.

Losing Firearms

It is the duty of a person who possesses a firearm to keep it safe. Section 39 of the Firearms Act 1996 (NSW) provides this duty, stating that:

• It is the responsibility of the person who possesses a firearm to ensure that the firearm is not stolen or misplaced.
• It is the duty of a person who possesses a firearm to ensure that the weapon does not come into the possession of an unauthorised individual.

What the Prosecution Must Prove

A prosecution must prove certain factors if the Court will convict the accused of the crime of losing their firearm. The prosecutor will need to show that:

• The accused had a firearm.
• The accused lost that firearm
• The firearm is in possession of another person.

Penalty For Losing a Firearm

The punishment for losing a firearm is a maximum of 12 months imprisonment or a fine of 20 penalty units which is about $2,200.

If the firearm is a prohibited weapon, the offender is liable to a maximum of 2 years incarceration or a fine of 50 penalty units. In some cases, it might result in both imprisonment and a fine.

Possessing or Using an Unregistered Firearm

In NSW, it is illegal per Section 36 of the Firearms Act 1996 (NSW) to use or acquire an unregistered firearm. This legislation also states that an individual must not possess, supply or purchase an unregistered firearm.

Nonetheless, it is a defence if the accused was unaware that the firearm was unregistered. First, however, the defendant must convince the Court that there was no way they could have known that the firearm was unregistered.

It is important to note that a licensed firearm dealer cannot be guilty of committing the crime of possessing an unregistered firearm. However, this principle only applies if they can apply to register the firearm within 24 hours upon acquiring the firearm.

Also, a person may not be guilty of committing this crime if the gun they possess is registered under a law in another state but not registered in the state they currently are.

Anyone found guilty of possessing, purchasing or selling an unregistered firearm faces a maximum of 5 years imprisonment. If the weapon is a prohibited firearm, this can attract a maximum of 14 years imprisonment.

Converting a Firearm

According to Section 63 of the Firearms Act 1996 (NSW), converting a firearm is an offence. This law states that:

• No individual can shorten a firearm to convert it into a pistol unless they have a license.
• No person must convert a pistol into a prohibited gun unless they possess a permit to carry out such an action.
• No individual must try to convert a firearm into a prohibited firearm if not authorised.
• An individual must not provide another person with information regarding how they can alter a firearm. However, this is when the recipient does not have the license to possess the firearm they are trying to create.

Anybody found guilty of breaking the above laws is liable to face a maximum of 14 years imprisonment. However, before a person can be guilty of the crime, the prosecution will have to prove beyond all reasonable doubt that the accused took specific actions.

As a response to the accusation, the defendant can raise different defences. For example, the defendant can either claim to commit the offence under duress or as a result of self-defence.

The Onus of Proof

In most trials for firearm offences, the burden of proof is usually on the prosecution, as it is in most criminal cases. The prosecution has the duty of proving that the defendant committed the crime. If the prosecutor succeeds at doing that, the onus of proof shifts to the defendant, who must provide evidence proving that they did not commit the crime.

Bottom Line

Being convicted of a firearm offence can negatively affect any person's life. It means having a criminal record. And that alone can affect a person's chances of securing a good job, travelling outside the country, etc. Therefore, it is advisable for anyone facing firearm offence charges to seek legal advice or representation to ensure the best outcome possible.

Will a Firearms Offence show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a firearms offence, the offence will show up as a disclosable court outcome (DCO) on the results of their Nationally Coordinated Criminal History Check.

Individuals can obtain a police check online via the Australian National Character Check - ANCC® website.

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