Possessing, Carrying or Using a Handgun Without a Licence (Non-Prohibited Person)

Police Interview

If police charge or plan to charge you with this offence, chances are they will want to interview you about it. This interview is not your opportunity to tell your side of the story and you should be very careful in giving police any further details or information. Police can use information you provide them during an interview against you later on in court. We assist our clients with police interviews and can help you if you need a lawyer to talk you through the process or require a lawyer to accompany you to an interview.

Pleading Not Guilty

You have the right to plead not guilty to this offence. We can assist you in assessing the evidence and advising you on whether the charges have been made out. We can also assist you with questions you might have such as:

• What is a non-prohibited person?
• What is the difference between possess and carry and can it make a difference to my case?

Pleading Guilty

If you decide to plead guilty to this offence, it is important that a judge or magistrate takes everything into account when sentencing you, especially any facts or details that work in your favour. Our criminal lawyers make plea submissions daily and are expert in knowing how to put together a strong plea. We can assist you if you have been charged.

Sentencing

Sentencing in the higher courts of VictoriaSentencing in the Magistrates’ Courts of Victoria

Which court will the case be heard in?

This offence is heard in the Magistrates’ Court.

Examples of Possessing, Carrying or Using a Handgun Without a Licence (Non-Prohibited Person)

• A person carries a concealed pistol without having a licence to do so.
• A person keeps a collection of handguns in their home in a display cabinet without a licence to do so.
• A person discharges a handgun without as licence to do so.

What is the legal definition of Possessing, Carrying or Using a Handgun Without a Licence (Non-Prohibited Person)?

1. A non-prohibited person must not possess, carry or use a registered general category handgun for purposes other than the purpose of collecting handguns, unless that person does so under and in accordance with a licence issued under Division 3 or 5 of this Part.
   Penalty: 240 penalty units or 4 years imprisonment.
2. A non-prohibited person must not possess, carry or use a registered category E handgun for purposes other than the purpose of collecting handguns, unless that person does so under and in accordance with a licence issued under Division 3 of this Part.
   Penalty: 600 penalty units or 7 years imprisonment.
3. A non-prohibited person must not possess, carry or use a registered general category handgun, that was manufactured before 1 January 1947, for the purpose of collecting handguns, unless that person does so under and in accordance with a licence issued under section 21 or section 25.
   Penalty: 240 penalty units or 4 years imprisonment.
4. A non-prohibited person must not possess, carry or use a registered category E handgun for the purpose of collecting handguns unless that person does so under and in accordance with a licence issued under section 21 or section 25.
   Penalty: 600 penalty units or 7 years imprisonment.
5. A non-prohibited person must not possess, carry or use a registered general category handgun, that was manufactured on or after 1 January 1947, for the purpose of collecting handguns, unless that person does so under and in accordance with a licence issued under section 21A.
   Penalty: 240 penalty units or 4 years imprisonment.
6. A non-prohibited person must not possess, carry or use a registered category E handgun, that was manufactured on or after 1 January 1947, for the purpose of collecting handguns, unless that person does so under and in accordance with a licence issued under section 21A.
   Penalty: 600 penalty units or 7 years imprisonment.

Legislation

The relevant legislative provision for this offence is section 7 of Firearms Act 1996 (Vic) (the Act).

Elements of the offence

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

1. The accused possessed, carried or used a handgun; and
2. The accused did not have an appropriate licence.

Element 1: The accused possessed, carried or used a handgun
A ‘handgun’ means a firearm that¹:

1. Is reasonably capable of being carried or concealed on a person; or
2. Is reasonably capable of being raised and fired by one hand; or
3. Does not exceed 65 centimetres in length measured parallel to the barrel.

‘Possession’ in relation to a firearm means²:

1. Actual physical possession of the firearm; or
2. Custody or control of the firearm; or
3. Having and exercising access to the firearm, either solely or in common with others.

‘Carry’ in relation to a firearm includes the carriage of that firearm either as a whole or in parts and either by one person or more than one person.³

‘Used’ is not defined in the Act and carries its ordinary meaning of discharging the firearm. If a person uses a firearm, they will be in possession of it.

Element 2: The accused did not have an appropriate licence
The second element the prosecution must prove is that the accused did not have an appropriate licence.

For general category handguns the following licences are required:

• A licence under Division 3 or 5 of Part 2 of the Act for purposes other than the collection of handguns⁴;
• A licence under sections 21 or 25 of the Act for the purpose of collecting handguns and the handgun was manufactured before 1 January 1947⁵; and
• A licence under section 21A of the Act for the purpose of collecting handguns and the handgun was manufactured on or after 1 January 1947.⁶

For category E handguns, the following licences are required:

• A licence under Division 3 of Part 2 of the Act for purposes other than the collection of handguns⁷;
• A licence under sections 21 or 25 of the Act for the purpose of collecting handguns and the handgun was manufactured before 1 January 1947⁸;and
• A licence under section 21A of the Act for the purpose of collecting handguns and the handgun was manufactured on or after 1 January 1947.⁹

“Do you have the appropriate licence?”

Prohibited vs. non-prohibited persons

This offence only applies to ‘non-prohibited persons’ under the Act. Prohibited persons a prohibited from possessing, carrying or using a firearm and cannot obtain a licence to do so.

A ‘prohibited person’ is defined in the Act to mean¹⁰:

• A person serving a term of imprisonment for certain offences;
• A person who has served a term of imprisonment of 5 years or more for certain offences and less than 15 years have expired since the end of that person’s term of imprisonment;
• A person subject to a Final Family Violence Intervention Order, Personal Safety Intervention Order or equivalent interstate order, a community based order, a community corrections order or a supervision order;
• A declared individual or relevant person under certain other legislation;
• A person found guilty of an offence against the Act or an equivalent interstate Act, a firearms offence under any other Act or any indictable offence in the past 12 months; or
• A person who is of a prescribed class of persons.

The maximum penalty for a prohibited person possessing, carrying or using a firearm is 1200 penalty units (a $193,428.00 fine) or 10 years imprisonment.¹¹

Defences

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

• The accused did not possess, carry or use a handgun; or
• The accused had a relevant licence permitting the possession, carrying or use of a handgun.

Situations may also arise where the accused can say they were possessing, carrying or using the handgun licence in self-defence.¹²

You should ring us and discuss your case if you have been charged. 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

• Was the accused a non-prohibited person?
• Did the accused possess, carry or use a handgun?
• Did the accused have a licence that allowed them to possess, carry or use a handgun?

Maximum penalty for section 7 of the Firearms Act 1996

The maximum penalty for Possessing, Carrying or Using a Handgun Without a Licence (Non-Prohibited Person) (s7 of the Firearms Act 1996) depends on whether the handgun is a ‘general category’ handgun or a ‘category E’ handgun.

A general category handgun is any handgun that is not a category E handgun.¹³ A category E handgun is¹⁴:

• A machine gun that is a handgun;
• A handgun prescribed as a category E handgun;
• Any other firearm declared under section 3A(1) of the Act to a category E handgun.

The maximum penalty for possessing, carrying or using a general category handgun without a licence is 240 penalty units (a $38,685.60 fine) or 4 years imprisonment.

The maximum penalty for possessing, carrying or using a category E handgun without a licence is 600 penalty units (a $96,714.00 fine) or 7 years imprisonment.

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.¹⁵ As such, the maximum fine for this offence may change.

Other important resources

• SAC Statistics – Firearms Act 1996 (Vic) : s 7(1) – non-prohibited person possess handgun without licence
• Victorian Firearm Licence Application Form (VP Form 0304B)
• Victoria – Gun Facts, Figures and the Law

_{[1] Firearms Act 1996 (Vic) s 3
[2] Firearms Act 1996 (Vic) s 3
[3] Firearms Act 1996 (Vic) s 3
[4] Firearms Act 1996 (Vic) s 7(1)
[5] Firearms Act 1996 (Vic) s 7(3)
[6] Firearms Act 1996 (Vic) s 7(5)
[7] Firearms Act 1996 (Vic) s 7(2)
[8] Firearms Act 1996 (Vic) s 7(4)
[9] Firearms Act 1996 (Vic) s 7(6)
[10] Firearms Act 1996 (Vic) s 3
[11] Firearms Act 1996 (Vic) s 5
[12] Crimes Act 1958 (Vic) s 322K
[13] Firearms Act 1996 (Vic) s 3
[14] Firearms Act 1996 (Vic) s 3
[15] 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/>.}