Fail to Ensure Ammunition is Carried/Used in a Secure Manner and is Not Lost/Stolen

– section 126(4) of the Firearms Act 1996

AmmunitionA person who is carrying or using cartridge ammunition must ensure that it is carried and used in a manner that is secure and not dangerous. In addition, reasonable precautions must be taken to ensure that the cartridge ammunition is not lost or stolen.

Failure to deal with ammunition as described above is in breach of section 126(4) of the Firearms Act 1996.

Examples of Fail to Ensure Ammunition is Carried/Used in a Secure Manner and is Not Lost/Stolen
  • You are going on a hunting trip with your friends and decide to take the train. You get distracted and leave the ammunition on the train, and someone else takes it.
  • You are going hunting, and you put the cartridge ammunition in a bag with a hole in it. It falls out.
  • You leave your gun and your ammunition the backseat of your car, and they are visible through the window. Someone breaks the window and takes both.
Questions in cases like this
  • Did you actually carry/use the ammunition in a ‘dangerous’ way?
  • What sort of precautions did you take to ensure the ammunition was not lost? Were they precautions that a reasonable person in your situation would have taken?
What are some of the possible defences to Fail to Ensure Ammunition is Carried/Used in a Secure Manner and is Not Lost/Stolen?

Criminal defences that are available are honest and reasonable mistake of belief, necessity, sudden or extraordinary emergency, concept of beyond reasonable doubt, and incorrect factual matrix.

If you have been charged with this offence, it is important that you see a lawyer as soon as possible. Your lawyer will assess your circumstances and discuss the options available to you. They will give a recommendation as to whether you should make a guilty plea or challenge the charge in court.

Often people do plead guilty to charges such as this. If you intend to plead guilty then you should discuss this with your lawyer. Organising your material and presenting your case well in Court will have a substantial impact on the outcome of your case.

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Maximum penalty and court that deals with this charge

This offence carries a maximum fine of 60 penalty units (around $9, 670) or 12 months imprisonment as a penalty. The sentence received depends on the circumstances of the case. Obviously the circumstances of the case will matter enormously as to whether a penalty would be in the upper end of the sentencing range.

As a summary offence, any summons for this charge will be normally heard by the Magistrates’ Court.

What is the legal definition of Fail to Ensure Ammunition is Carried/Used in a Secure Manner and is Not Lost/Stolen?

The legal definition of this offence is ensuring that cartridge ammunition, when being carried or used, is carried and used in a manner that is secure and not dangerous, and taking reasonable precautions to ensure that it is not lost or stolen.

Legislation

The legislation for this offence can be found on section 126(4) of the Firearms Act 1996.

Elements of the offence

The prosecution must prove the following beyond reasonable doubt:

 

  • The accused carried or used cartridge ammunition; and

 

 

There may be a dispute over who was carrying or using the cartridge ammunition, or whether it actually was cartridge ammunition, or something else.

 

  • The accused carried or used the cartridge ammunition in a manner that was not secure and dangerous; or

 

 

Was the manner in which the ammunition was used or carried ‘dangerous’? If someone was hurt, the prosecution will argue that the manner was dangerous.

 

  • In the case where cartridge ammunition is lost or stolen, that the accused did not take reasonable precautions to ensure that the cartridge ammunition was not lost or stolen.

 

 

There may be a dispute over what constitutes ‘reasonable precautions’. Leaving ammunition unattended in a public place would probably not be a reasonable precaution. However, leaving it locked inside one’s home would probably be. It will depend on the circumstances.

Magistrates' Court

Sentencing in the Magistrates’ Courts

From 1 July 2013 to 30 June 2016, there were 118 cases (124 charges) of Fail to Ensure Ammunition is Carried/Used in a Secure Manner and is Not Lost/Stolen that were heard in the Magistrates’ Courts of Victoria. These resulted in the following sentences:

  • Fine – 34.8%
  • Imprisonment – 25.4%
  • Community Correction Order – 19.5%
  • Adjourned Undertaking/Discharge/Dismissal – 17.0%
  • Partially Suspended Sentence – 1.7%
  • Wholly Suspended Sentence – 1.7%

The highest category of fine imposed was “$5,000 < $10,000” but this was given to only 2.0% (aggregate) of those who were fined. The majority was in the “$500 < $1,000” category for aggregate fines (33.3%) and “Less than $500” for non-aggregate fines (7.8%).

The longest prison term imposed is “24 < 36 months” but this was given to only 6.7% of those were sentenced to imprisonment. The majority was given “< 3 months” (26.7%) and “3 < 6 months” (26.7%).1

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.2

Other important resources
Media information

 



[1] SAC Statistics – Firearms Act 1996 (Vic) : s 126(4) – fail to ensure ammunition is carried/used in a secure manner and is not lost/stolen < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/96_66_126_4.html >
[2] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >