Firearms Offences and Penalties in Victoria (VIC)

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The State of Victoria has in recent times seen an increase in the use of illegal firearms. Firearms offences and penalties in Victoria are legislated by the Firearms Act 1996 (Vic).

According to the Australian Criminal Intelligence Commission, there are an estimated 260,000 illicit firearms in the Australian market. These illegal firearms may have roots in either the operation of 'villain' gun dealers or even licensed firearm owners.

Whatever the case, firearm offences are increasingly becoming a source of concern to the Victorian Police and the public. As such, the Victorian Police in January 2021 unveiled a new unit dedicated to investigating the use and distribution of illegal firearms. This unit is the Illicit Firearms Unit (IFU).

If an individual is convicted in a Victorian court for a firearms offence, the offence will show up as a disclosable court outcome (DCO) on a Victorian Nationally Coordinated Criminal History Check result.

This article will look at what weapons the law considers as firearms, actions that contradict the Firearms Act 1996 (Vic), and the punishment accompanying such contraventions. You will also get to know the possible defences available to anyone charged with a firearms offence.

What is a 'Firearm?'

A firearm is a device that can discharge shots, bullets or other missiles. Such devices are broadly classified into two categories: handgun and longarm.

A handgun is a firearm that:

• Is below 65cm in its length size
• A person can easily carry around or hide
• Does not need the use of two hands to fire a shot. One hand is sufficient.

On the other hand, a longarm is any firearm that does not fall into the handgun category. Examples include machine guns, shotguns, rifles and the likes.

Whatever the category, firearms are typically dangerous when let on the loose. Therefore, the law does not permit an individual to possess, use or carry around a firearm without a license. Doing so will attract specific punishments - usually a fine or some years of imprisonment.

Nonetheless, obtaining a license may not be enough. The law also requires individuals to register their firearms. It means having a license to use a firearm does not automatically make the firearm registered.

Elements of Firearm Offences in Victoria

Before a Victorian Court can find a person guilty of a firearm offence, the prosecution must prove certain elements beyond a reasonable doubt. These elements include:

#1. That there was a possession of a firearm

The prosecution must first establish that the accused offender was in actual possession of a firearm and had complete control of it. They must also prove that the accused had the intention to have the firearm in his possession. It wasn't just some random mistakes or a defence mechanism.

#2. That the firearm was not registered

The second element to be established is that the firearm was not registered. To prove whether it was registered or not, the accused will need to provide evidence of registration. This evidence might include the serial number of the firearm for identification purposes.

What Constitutes a Firearm Offence in Victoria?

As previously stated, anyone caught in possession of an unregistered firearm or weapon or with a registered firearm but is unlicensed will be subject to punishment by the law. But these are not the only actions that are firearm offences under the law. Other firearm crimes include:

#1. Possession of Cartridge Ammunition

Section 124 of the Firearms Act 1996 (Vic) makes possession of cartridge ammunition an offence punishable by law. However, there are a few exceptions where a person can possess cartridge ammunition without contravening the law. These 'exempted' people are those who:

• Hold a license under the Firearms Act or a permit under Section 58A of the Act.
• Have a license issued under the Dangerous Goods Act (1985) (Vic) to keep explosives for sale and to sell such explosives, or
• The Firearms Act does not mandate to have a license before they can have possession of a firearm.

#2. A prohibited person in possession of a firearm

Simply put, a person is 'prohibited' from having or using a firearm if:

• Any court has found them guilty of an indictable offence in the past twelve months. It is irrelevant whether the crime was within Victoria or not. If the person committed the crime outside Victoria, it is enough to qualify as 'prohibited' under the law.
• A court has sentenced them to imprisonment, and they are currently serving the terms.
• They have served an imprisonment sentence of five years or more in the past 15 years.
• They are declared individuals or are subject to a control order under the Criminal Organisations Control Act 2012 (Vic), or
• They are subject to a final order under the Victorian Family Violence Protection Act 2008 (Vic) or the Personal Safety Intervention Orders Act 2010 (Vic). Anyone who falls within this category cannot possess a firearm even after five years from when the Intervention Order in Victoria expires.

The law prohibits anyone who falls under any of these categories from having firearms. Nonetheless, they may seek to reverse their status as prohibited persons under Section 189 of the Firearms Act 1996 (Vic) by applying to the courts.

Such applicants must first prove to the courts that they will not be a risk to the city if the Court permits them to have possession of firearms. They must also provide licit reasons as to why they want to have or use firearms.

In addition to the above factors, the Victorian Court will also consider whether the applicant has a track record of using firearms illegitimately and any interests they have in firearms.

#3. Storage of Firearms or Ammunition offences

The law expects specific duties from every individual who it has licensed to use firearms. This expectation is that they store their firearms properly when the firearms are not in use. Under Section 129 of the Firearms Act 1996 (Vic), it is an offence to keep or store firearms carelessly.

When storing firearms, it is best to place them in thongs that cannot be penetrated easily in the case of an accidental discharge. Hardwood, steel, and similar materials are some of the best options a person can use to keep firearms safely.

#4. Use of Firearm in a Prohibited Place

Generally, there are certain places the law prevents the use of firearms. A town, for instance, or somewhere that has lots of people in it. Another place is a thoroughfare or any place used by the public for passage with vehicles.

Using firearms in such places amounts to the commission of an offence under section 130 of the Firearms Act 1996 (Vic).

However, even though the law essentially prohibits the use of firearms in populated places, there are certain people who the law permits to use guns within these restricted areas. Such persons are typically those who require firearms to carry out their duties effectively. These individuals include police officers, prison officers and security guards.

#5. Safekeeping of Firearms

Any person with a registered weapon needs to keep that firearm securely. This obligation is to prevent the use of illicit firearms if it is stolen or lost. In addition, this safekeeping of firearms ensures that these dangerous devices do not get into the wrong hands or get used for the wrong purposes.

#6. Possession of imitation firearms

Apart from the Firearm Act of 1996, there are specific legislations that regulate the use of firearms. For instance, the Control of Weapons and Firearms Acts Amendment Act 2012 (Vic) makes it a crime for an individual to be in possession of an imitation firearm without an exemption or approval.

An imitation firearm is a device that may look like a firearm and may be mistaken for one but is not a firearm. Anyone who wants to possess, carry, or use imitation firearms must obtain a permit. They can only receive this permit after getting a Chief Commissioner of Police Prohibited Weapons Approval or a Governor in Council Exemption.

#7. Use of Prohibited Weapons

There are certain weapons that the law does not classify as 'firearms' but are still considered dangerous. Any person who intends to have such weapons must first obtain an exemption from the Chief Commissioner. Some of these prohibited weapons include:

• Tasers
• Crossbows
• Daggers and Flick knives
• Swords
• Throwing blades or stars
• Knuckle dusters (brass knuckles)
• Martial arts weapons
• Extendable batons
• Slingshots
• Imitation firearms

Without an exemption, selling or having these weapons is an offence and is punishable under the law.

#8. Possession of Firearms in Premises

The Firearms Amendment (Trafficking and Other Measures) Act 2015 (Vic) is one of the most recent legislation regulating the possession of firearms in Victoria. One of its provisions is that a person who has a firearm on their land, premises, or vehicles left in their care will be deemed as being in possession of firearms.

#9. Illegal Manufacture of Firearm

Under the Firearms Amendment (Trafficking and Other Measures) Act 2015 (Vic), the illegal manufacturing of firearms is an offence punishable by the law.

#10. Acquisition or Disposal of Unregistered Firearms

The law provides that a person should not acquire or dispose of more than three unregistered firearms within a window of 12 months. The law considers doing so firearm trafficking.

Penalties for Firearm Offences

Depending on the type of firearm offence, the punishments differ. Some of these punishments are:

• For possession of an unlicensed or unregistered firearm, an offender is liable to a penalty of two to seven years imprisonment.
• A prohibited person that the Court finds guilty of using firearms without a permit faces a term of imprisonment of 10 years.
• Additionally, anyone the Court convicts of being in possession of a firearm without proper authorisation will serve a maximum penalty of 2 years imprisonment.
• Using a firearm in a prohibited place has a maximum penalty of 10 years' imprisonment.
• Failure to store a firearm correctly is a crime under Section 121 of the Firearms Act 1996 (Vic), punishable by a maximum of 12 months imprisonment.
• Possession of imitation firearms has its maximum penalty set at 240 penalty units or two years' imprisonment.
• As per section 74AA of the Crimes Act 1958 (Vic), the theft of a firearm attracts a sentence of 15 years imprisonment.

Factors Considered in Penalising Firearm Offenders

Generally, in deciding the sentencing of firearm offenders, the Court will usually consider certain factors, including:

#1. Measure of Offence

In evaluating the severity of an offence, the Court in adjudicating over a Firearm case would typically look into:

• The type of firearm involved
• Whether the offender committed the firearm offence in the course of committing another more grievous crime.
• The amount of ammunition used

#2. Functionality of Firearm

The Victorian Court may also take into consideration the functionality of the firearm. The Court would attach more severity to situations that involve a working firearm. It'll consider the damage it can cause and may impose a greater sentence than it would on an offender caught with a non-functional gun.

#3. The Cause of Offence

The Court might likely look into the cause of the offence. For example, where the accused committed the crime in self-defence or in reaction to fear, the Court will probably give the offender a less severe sentence.

What Defences are Available to an Accused?

Anyone charged with a firearm crime can plead certain defences to prevent being penalised or to receive a lesser punishment. Some of these defences include:

#1. Lack of Intention

With this defence, the accused asserts that they did not have the intention to possess the firearm. The goal is to prove that the accused was likely ignorant that the firearm was in their possession. Alternatively, they may establish that the possession was an unavoidable mistake.

#2. No physical control

One of the elements the prosecution must prove in firearm offences is that the accused had the firearm in their possession and had physical control of it. If the accused has evidence showing that they had no physical control of the gun, they have a strong defence that may likely work in their favour.

Who Has the Onus of Proof?

In every case, the burden of proving that all the elements of the offence are present must lie on one of the parties. Usually, this onus of proof falls on the prosecution. Whoever accuses someone of a crime must prove that guilt. The same applies in cases involving a firearm - the onus of proof is on the prosecution.

Bottom Line

The primary law regulating the possession, use, purchase, manufacture, and supply of firearms in Victoria is the Firearms Act 1996 (Vic). Contravening its provisions amounts to a serious offence with grave consequences.

Therefore, it is advisable for anyone charged with any of the offences to seek the assistance of a legal team experienced in handling such cases in Victorian law courts.

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 Nationally Coordinated Criminal History Check online via the Australian National Character Check - ANCC® website.

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