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

– section 7 of the Firearms Act 1996
Handgun
This charge is laid where a non-prohibited person possessed, carries or uses a handgun without the proper licence.
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.
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?
What are some of the possible defences to Possessing, Carrying or Using a Handgun Without a Licence (Non-Prohibited Person)?

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.1

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.

Maximum penalty and court that deals with this charge

The maximum penalty for this offence 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.2 A category E handgun is3:

  • 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.4 As such, the maximum fine for this offence may change.

This offence is heard in the Magistrates’ Court.

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).

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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 that5:

  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 means6:

  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.7

‘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 handguns8;
  • A licence under sections 21 or 25 of the Act for the purpose of collecting handguns and the handgun was manufactured before 1 January 19479; 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 1947.10

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 handguns11;
  • A licence under sections 21 or 25 of the Act for the purpose of collecting handguns and the handgun was manufactured before 1 January 194712;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 1947.13
“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 mean14:

  • 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.15

Sentencing in the Magistrates’ Courts

From 1 July 2013 to 30 June 2016, there were 100 cases (106 charges) of Non-prohibited Person Possess Handgun Without Licence that were heard in the Magistrates’ Court of Victoria. There cases resulted in the following sentences:

  • Imprisonment – 33.0%
  • Partially Suspended Sentence – 6.0%
  • Wholly Suspended Sentence – 8.0%
  • Community Correction Order – 27.0%
  • Fine – 18.0%
  • Other – 1.0%
  • Adjourned Undertaking/Discharge/Dismissal – 7.0%

ImprisonmentOf the cases that resulted in prison terms, the majority were sentenced to a period that was more than 3 months but less than 6 months (30.3%). The longest period imposed was between 24 and 36 months but this category was imposed in only 6.1% of the cases that led to imprisonment.

The majority of those who were sentenced to financial penalties were in the “$1,000 < $2,000” category (42.1% for aggregate and 15.8% for non-aggregate). The highest fine imposed was between $5,000 and $10,000 but this was imposed to only 5.3% of those who were fined (aggregate).16

Please note that suspended sentences were abolished in the Magistrates’ Court for all offences committed on or after 1 September 2014.17

Other important resources

 



[1] Crimes Act 1958 (Vic) s 322K
[2] Firearms Act 1996 (Vic) s 3
[3] Firearms Act 1996 (Vic) s 3
[4] 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/>.
[5] Firearms Act 1996 (Vic) s 3
[6] Firearms Act 1996 (Vic) s 3
[7] Firearms Act 1996 (Vic) s 3
[8] Firearms Act 1996 (Vic) s 7(1)
[9] Firearms Act 1996 (Vic) s 7(3)
[10] Firearms Act 1996 (Vic) s 7(5)
[11] Firearms Act 1996 (Vic) s 7(2)
[12] Firearms Act 1996 (Vic) s 7(4)
[13] Firearms Act 1996 (Vic) s 7(6)
[14] Firearms Act 1996 (Vic) s 3
[15] Firearms Act 1996 (Vic) s 5
[16] SAC Statistics, ‘Non-prohibited person possess handgun without licence’, accessed 17/11/2018 <https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/96_66_7_1.html>
[17] Suspended Sentence | The Sentencing Advisory Council, ‘Suspended Sentence, accessed 17/11/2018 <https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence>