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Possessing Controlled Weapon

– section 6 of the Control of Weapons Act 1990

This charge is laid where a person possesses, carries or uses a controlled weapon without a lawful excuse. The offence also applies when a person with a lawful excuse carries a controlled weapon in an inconsistent manner for which it is possessed or is carried or is to be used.
Weapons
This offence is heard in both the higher courts and the Magistrates’ Court.
 
Examples of Possessing Controlled Weapon
  • A person possesses a spear gun without lawful excuse.
  • A person possesses a baton or cudgel without lawful excuse.
  • A person possesses a bayonet without lawful excuse.
  • A person possesses a cattle prod without lawful excuse.
What is the legal definition of Possessing Controlled Weapon?
  1. A person must not possess, carry or use a controlled weapon without lawful excuse.Penalty: 120 penalty units or imprisonment for 1 year.
  • (1A) A person who is in licensed premises or in a public place that is in the immediate vicinity of licensed premises must not possess, carry or use a controlled weapon without lawful excuse.Penalty: 240 penalty units or imprisonment for 2 years.
  1. A person must not carry a controlled weapon unless it is carried in a safe and secure manner consistent with the lawful excuse for which it is possessed or is carried or is to be used.Penalty: 20 penalty units.
Legislation
The relevant legislative provision for this offence is section 6 of Control of Weapons Act 1990 (Vic) (the Act).

Elements of the offence
For a person to be guilty of this offence, the prosecution must prove the following elements beyond reasonable doubt:

  1. The accused possessed, carried or used a weapon;
  2. The weapon was a controlled weapon;
  3. The accused did not have a lawful excuse for possessing, carrying or using the controlled weapon.
Element 1: The accused possessed, carried or used a weapon
The prosecution must prove that the accused possessed, carried or used a weapon to satisfy this element of the offence.

‘Possession’ of a weapon includes1:

  1. Actual physical possession; and
  2. Custody or control; and
  3. Having and exercising access either solely or in common with others.
‘Carried’ and ‘used’ are not defined in the Act and have their ordinary meanings of an accused having a weapon on their person or using a weapon.

Element 2: The weapon was a controlled weapon
The prosecution must then prove that the weapon the accused was carrying was a controlled weapon.

A weapon will be a controlled weapon if it is2:

  1. A knife, other than a knife that is a prohibited weapon; or
  2. An article that is prescribed by the regulations to be a controlled weapon.
The Control of Weapons Regulations 2011 (Vic) prescribes controlled weapons in Schedule 2.3 Controlled weapons as prescribed by the regulations are4:

  1. Spear gun;
  2. Baton or Cudgel, being a short stout stick made of any material designed as a weapon, including the weapon commonly known as a “police nightstick”;
  3. Bayonet, being a thrusting, striking or cutting weapon designed to be attached to a firearm; and
  4. Cattle prod.
Element 3: The accused did not have a lawful excuse for possessing, carrying or using the controlled weapon
The final element the prosecution must prove is that the accused did not have a lawful excuse to possess, carry or use the controlled weapon.

A ‘lawful excuse’ includes the pursuit of any lawful employment, duty or activity and participation in any lawful sport, recreation or entertainment and the legitimate collection, display or exhibition of weapons.5

When considering if a lawful excuse exits, the court must have regard to the circumstances, such as time and location, of the incident.6

Even if the accused does have a lawful excuse for carrying a controlled weapon, unless it is carried in a safe and secure manner consistent with the lawful excuse for which it is possessed or is carried or is to be used, the accused will face a fine of 20 penalty units.7

“Did you have a lawful excuse for having the controlled weapon?”

[1] Control of Weapons Act 1990 (Vic) s 3
[2] Control of Weapons Act 1990 (Vic) s 3
[3] Control of Weapons Regulations 2011 (Vic) s 7
[4] Control of Weapons Regulations 2011 (Vic) Schedule 2
[5] Control of Weapons Act 1990 (Vic) s 6(3)
[6] Control of Weapons Act 1990 (Vic) s 6(4)
[7] Control of Weapons Act 1990 (Vic) s 6(2)

 
Defences to this charge ordinarily turn on some element of the offence not being made out. These defences include:

  • The accused did not possess, carry or use a controlled weapon;
  • The accused had a lawful excuse for possessing, carrying or using the controlled weapon.
It is not a defence to possess, carry or use controlled weapons for the purpose of self defence.8

You should ring us and discuss your case so we can properly guide you throughout the criminal prosecution process. Deciding on whether to plead guilty or not has significant consequences for you and should be made after proper discussion with a criminal lawyer.

Questions in cases like this
  • Is the accused, possessing, carrying or using a weapon?
  • Is the weapon a controlled weapon?
  • Does the accused have a lawful excuse for possessing, carrying or using the controlled weapon?

[8] Control of Weapons Act 1990 (Vic) s 6(3)
 
Possessing, carrying or using a controlled weapon without lawful excuse has a maximum penalty of 120 penalty units (a $19,342.80 fine) or imprisonment for 1 year.9

Possessing, carrying or using a controlled weapon without lawful excuse in or in the vicinity of a licensed premises or in a public place has a maximum penalty of 240 penalty units (a $38,685.60 fine) or imprisonment for 2 years.10

Even if a person has a lawful excuse for carrying a controlled weapon, if they do not carry it in a safe or secure manner consistent with the lawful excuse for which it is possessed or is carried or is to be used, they face a maximum penalty of 20 penalty units (a $3,223.80 fine).11

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.12 As such, the maximum fine for this offence may change.


[9] Control of Weapons Act 1990 s 6(1)
[10] Control of Weapons Act 1990 s 6(1A)
[11] Control of Weapons Act 1990 s 6(2)
[12] Department of Justice, ‘Penalties and Values’, accessed 17/11/2018 <http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/>.

 
Sentencing in the higher courts
There were 132 charges of Possess, Use or Carry a Controlled Weapon section 6(1) that were heard in the Victorian higher courts from 1 July 2011 to 30 June 2016. The majority of these charges resulted in imprisonment at 60.6% of all the charges. Other sentences imposed include:

  • Fine – 18.9%
  • Community Correction Order – 9.8%
  • Adjourned Undertaking/Discharge/Dismissal – 6.1%
  • Partially Suspended Sentence – 1.5%
  • Wholly Suspended Sentence – 1.5%
  • Youth Justice Centre Order – 1.5%
Of the prison terms imposed, 82.5% were less than a year while 1.2% were more than a year but less than 2 years (1.2%).13

Please note that suspended sentences were abolished in the higher courts as a sentencing option for all offences committed on or after 1 September 2013.14

Sentencing in the Magistrates’ Courts
In the Magistrates’ Courts, there were 49 cases of Possess, Carry or Use a Controlled Weapon (section 6(1)),15 and 49 cases of Possess a Controlled Weapon in a Licensed Premises (section 6(1A)),16 that were heard from 1 July 2013 to 30 June 2016. The majority of cases involving both offences led to imprisonment but there were also various other sentences imposed.

Possess, Carry or Use a Controlled Weapon section 6(1)

  • Imprisonment – 32.5%
  • Community Correction Order – 26.8%
  • Fine – 22.6%
  • Adjourned Undertaking/Discharge/Dismissal – 9.7%
  • Wholly Suspended Sentence – 5.2%
  • Partially Suspended Sentence – 2.0%
  • Other – 0.7%
  • Youth Justice Centre Order – 0.5%
The highest prison term imposed was for more than 36 months but only 0.5% of the cases that resulted in imprisonment fall under this category. The majority of imprisonment sentences were less than 3 months.

In terms of financial penalties, the highest amounts imposed were under the categories “$500 < $1,000” (32.1% for aggregate) and “Less than $500” (12.0% for non-aggregate).17

Possess a Controlled Weapon in a Licensed Premises section 6(1A)

  • Imprisonment – 55.1%
  • Community Correction Order – 16.3%
  • Fine – 16.3%
  • Adjourned Undertaking/Discharge/Dismissal – 8.2%
  • Wholly Suspended Sentence – 2.0%
  • Other – 2.0%
Of the prison terms imposed, the longest was between 18 and 24 months (3.7% of the cases that led to imprisonment). The most frequently imposed imprisonment term was between 6 and 18 months (51.8% of all the cases that led to imprisonment).

Most of the cases that led to fines were under the “Less than $500” category (40.0% for aggregate and 30.0% for non-aggregate). The highest amount imposed was between $3,000 and $4,000 but this only accounts for 10.0% of all the cases that led to fines.18

Please note that suspended sentences were abolished in the Magistrates’ Court as a sentencing option for all offences committed on or after 1 September 2014.19


[13] SACStat Higher Courts, ‘Possess, use or carry a controlled weapon’, accessed 18/11/2018 <https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_90_24_6_1.html>
[14] The Sentencing Advisory Council, ‘Suspended Sentence’, accessed 18/11/2018 <https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence>
[15] SAC Statistics, ‘Possess, carry or use a controlled weapon’, accessed 18/11/2018 <https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/90_24_6_1.html>
[16] SAC Statistics, ‘Possess a controlled weapon in a licensed premises’, accessed 18/11/2018 <https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/90_24_6_1A.html>
[17] SAC Statistics, ‘Possess, carry or use a controlled weapon’ accessed 18/11/2018 <https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/90_24_6_1.html>
[18] SAC Statistics, ‘Possess a controlled weapon in a licensed premises’, accessed 18/11/2018 <https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/90_24_6_1A.html>
[19] The Sentencing Advisory Council, ‘Suspended Sentence’, accessed 18/11/2018 <https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence>