Control of Use of Dangerous Articles

Published Updated January 25, 2017 · Updated Updated April 3, 2020

– section 7 of the Control of Weapons Act 1990

This charge is usually laid when someone is carrying a ‘dangerous article’ (for example, a knife) in public without a lawful excuse.

Which Court Will the Case be Heard in?

It is an indictable offence but it may be heard summarily. This means that the offence may heard either at the Magistrates’ Court or higher courts.

Meaning of Control of Use of Dangerous Articles

What is the legal definition of Control of Use of Dangerous Articles?

A person is in a public place or a licensed premises and possesses an article capable of being used as a weapon without a lawful excuse.

Examples of Control or Use of Dangerous Articles

Our client was arrested for assault, and the police found a box-cutter in his pocket. He didn’t have a lawful excuse for the boxcutter – for instance, he didn’t use it as part of his employment. Police charged him with possession of a dangerous article.

“Did you have a lawful excuse for the dangerous article?”

Legislation

The section that covers this offence is section 7 of the Control of Weapons Act 1990.

Elements of the offence

For an accused to be found guilty, the prosecution must prove the following beyond reasonable doubt:

The accused possessed or carry a dangerous article in a public place; or
The accused possessed or carry a dangerous article in licensed premises or in a public place that is in the immediate vicinity of licensed premises; and
The accused was without lawful excuse from doing so.

‘Dangerous article’ is defined as:

an article which has been adapted or modified so as to be capable of being used as a weapon; or
any other article which is carried with the intention of being used as a weapon

Defences

The item in your possession was not a dangerous article
You had a lawful excuse for carrying the item

Questions in cases like this

Is the item actually a dangerous article? Is it an item which has been adapted or modified so as to be capable of being used as a weapon?
Were you carrying the item with the intention of using it as a weapon?
Were you carrying the item in a public place or on a licensed premises?

Maximum Penalty

The maximum penalty for this offence is 60 penalty units or imprisonment for 6 months if the offence was committed in a public place, and 120 penalty units or imprisonment for 1 year if the offence was committed in a licensed premises.

Sentencing

Sentencing in the higher courts

From 1 July 2013 to 30 June 2018, there were 21 charges of Control Of Weapons Act 1990 (Vic) s 7(1) – Possess or Carry a Dangerous Article in a Public Place that were heard in the higher courts of Victoria. Majority of these charges resulted in imprisonment (66.7%) but Community Correction Orders (23.8%) were also imposed along with Fines (4.8%) and Adjourned Undertaking/Discharge/Dismissal (4.8%). Of the charges that led to imprisonment, 57.1% were sentenced to less than a year.¹

Sentencing in the Magistrates’ Courts

In the Magistrates’ Courts, there were a total of 1,683 cases (1,842 charges) of Control Of Weapons Act 1990 (Vic) s 7(1) – Possess or Carry a Dangerous Article that were heard from 1 July 2013 to 30 June 2016. They resulted in the following sentences:

Imprisonment – 27.9 %
Fine – 27.1 %
Community Correction Order – 24.7 %
Adjourned Undertaking/Discharge/Dismissal – 11.5 %
Wholly Suspended Sentence – 5.4 %
Partially Suspended Sentence – 2.3 %
Other – 0.7 %
Youth Justice Centre Order – 0.5 %

Of the cases that resulted in imprisonment, majority were sentenced to a term that was less than 3 months (30.0%). The longest term imposed was more than 3 years but this was least imposed at only 0.9% of the cases that led to prison terms.

For the fines, majority fell under the $500 < $1,000 category (29.5%, aggregate). The highest fine imposed was $20,000 or more but this was applied in only 0.2% of the cases (aggregate).²

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.³

_{[1] Sentencing Advisory Council. “SACStat Higher Courts – Control Of Weapons Act 1990 (Vic): s 7(1) – possess or carry a dangerous article in a public place.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_90_24_7_1.html (accessed August 26, 2019).
[2] Sentencing Advisory Council. “SAC Statistics – Control Of Weapons Act 1990 (Vic): s 7(1) – possess or carry a dangerous article.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/90_24_7_1.html (accessed August 26, 2019).
[3] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed August 26, 2019).}

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