Possessing Controlled Weapon

The offence of Possessing Controlled Weapon is found in section 6 of the Control of Weapons Act 1990 in Victoria. It is committed by a person who possessed, carried, or used a controlled weapon without a lawful excuse. The charge may also be made against a person who sold a controlled weapon to another person who is a child, whilst knowing that the person is a child. Note that it is illegal for a child to buy a controlled weapon.

Further, this charge may also apply to a person who did not possess, carry, or use a controlled weapon in a safe or secure manner – even if they have a licence.

Weapons
Have you been accused of Possessing Controlled Weapon?

Police Interview
If you have been arrested for Possessing Controlled Weapon, or if you know that police want to interview you about the offence, you must call one of our expert lawyers to ask them your important legal questions. Your lawyer will provide you with knowledgeable advice about how the interview process works so you know what to expect and are not caught off guard.

You will have important questions about the interview, such as:

  • Do I need to go to the interview?
  • Should I answer the questions?
  • Will I be remanded?
Our lawyers can answer these important questions and any others you have.

Pleading Not Guilty
Just because the Police accuse you of Possessing Controlled Weapon, does not mean you are guilty. They sometimes make mistakes and can charge people incorrectly. If you deny this allegation, you need an expert defence in your corner representing you in Court. Our lawyers take pride in meticulously preparing defence strategies to increase their chances of securing a not guilty verdict.

Pleading Guilty
Pleading guilty to Possessing Controlled Weapon essentially means that that you accept responsibility for your behaviour and the summary of facts.

One of our lawyers can represent you on a plea of guilty and guide you through the process. Preparation is key and there will be things you should prior to Court which our lawyers can advise you of. This ground work will lead to a favourable outcome in Court.

Sentencing
Sentencing in the higher courts of VictoriaSentencing Statistics Pie Chart for Possess, Carry or Use a Controlled Weapon Without Lawful Excuse in the Higher CourtsSentencing in the Magistrates’ Courts of VictoriaSentencing Statistics Pie Chart for Possess, Carry or Use a Controlled Weapon in the Magistrates' Courts
Which court will the case be heard in?
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?”

Defences
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?
Maximum penalty for section 6 of the Control of Weapons Act 1990
Possessing, carrying or using a controlled weapon without lawful excuse (s6 of the Control of Weapons Act 1990) 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.

Other important resources
Case studies related to Possessing 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)
[8] Control of Weapons Act 1990 (Vic) s 6(3)
[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/>.