Possessing, Using, or Carrying an Unregistered Handgun

gun possession chargesPossessing, using or carrying an unregistered handgun is considered to be one of the most serious types of gun possession charges and will generally result in the forfeiture of the weapon. Sentences for this type of offence begin at large fines but also include prison, particularly for repeat offenders and in cases where the weapon has been tampered with in some way, is capable of being fired and is in close proximity to ammunition. This charge is laid where a person is found with an unregistered handgun on their person or on their property. It is also laid where a person uses an unregistered handgun.

A general category handgun includes:

  • rimfire handgun
  • centre fire handgun that is not a category E handgun
  • muzzle loading handgun
  • air pistol
  • handgun that does not exceed 65 centimetres in length

A category E handgun is:

  • machine gun that is a handgun
  • handgun prescribed for the purposes of this category.

Deciding on whether to plead guilty or not has huge consequences for you. It is a decision that should only be made after proper discussion with a criminal lawyer that specialises in gun possession charges.

Examples of Possessing, Using, or Carrying an Unregistered Handgun
  • You have an unregistered handgun hidden in your bedroom closet. The police raid your house and find the gun.
Questions in cases like this
  • Is the item a handgun?
  • Is the handgun unregistered?
  • Is the handgun in your possession? Are you using or carrying the handgun?
  • Is the item a ‘category E’ handgun?
Possible defences: Gun possession charges – Unregistered Handgun

A defence to this may arise where an accused had the weapon for the purposes of self-defence. Other defences include lack of intention to possess the firearm or that no possession actually occurred, honest and reasonable mistake of belief, necessity, duress, wrongful identification, sudden or extraordinary emergency and incorrect factual matrix.
Imprisonment

Maximum penalty and court that deals with this charge

For a first offence, the maximum penalty is 600 penalty units or 7 years imprisonment.

For a second or subsequent offence, the maximum penalty is 1200 penalty units or 10 years imprisonment.1

If the handgun is a category E handgun, the maximum penalty is 1800 penalty units or 14 years imprisonment for a first offence, and 2100 penalty units or 17 years imprisonment for a second or subsequent offence.2

These are indictable offences, but they can be heard summarily, which means they are often heard in the Magistrates’ Court.

What is the legal definition of Possessing, Using, or Carrying an Unregistered Handgun?

A person must not possess, carry or use a general category handgun that is not registered, including a category E handgun.

Legislation

The relevant legislation for this offence is section 7B of the Firearms Act 1996.

The elements

  1. The accused possessed a handgun; and
  2. The handgun was not registered.

The accused possessed a handgun
Possession is not defined in the Act and takes the form of the common law definition. Common law possession involves the physical control with an intent to possess.

The conduct element
This requires the Prosecution to prove that the handgun was in the Accused’s possession or physically in their control.3 A person does not need to be carrying the material on their person to satisfy this element. They do however have to have custody or control over it. It is not uncommon for a hand gun to be forgotten about and found to be in a person’s room or garage whilst a warrant is executed for unrelated matter. In the first instance, a bedroom is a location where a person has manual custody. Once a person has possession of an item, that possession remains alive until the item possessed is disposed of. This is said to be in their custody and within their control.4

 
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The mental element
In determining whether or not the accused intended to possess a handgun, a jury or Magistrate, depending on the circumstances, will need to decide if they can draw an inference from all of the evidence in the case that the accused had this intention.

The prosecution does not need to prove that the accused intended to possess the particular hand gun in question. The intention may be general and a person may be in possession of a thing without necessarily knowing the nature of the thing, but it is essential that there at least be an intent to possess the thing irrespective of its nature.5

Further, intention can be shown in a variety of ways including admission by the Accused. It is also possible to infer an intention to possess a handgun from proof that the accused knew of the existence and nature of the item possessed.6

In terms of carrying or use of an unregistered handgun, possession is an easier element to satisfy (as with all gun possession charges) on the basis that the item is physically on the person.

The handgun was not registered
The handgun alleged to have been in the accused’s possession is not registered with the relevant authority, namely the Victoria Police Licensing and Regulation Division.
 

“Was your handgun registered?”

 

Sentencing in the higher courts

From 1 July 2013 to 30 June 2018, there were a total of 85 charges of Firearms Act 1996 (Vic) s 7B(1) – Possess, Carry or Use an Unregistered General Category Handgun that were heard in the higher courts of Victoria. Majority of these charges resulted in imprisonment (82.4%) but there were also a few that led to other types of penalties:

  • Community Correction Order – 9.4%
  • Fine – 3.5%
  • Wholly Suspended Sentence – 2.4%
  • Adjourned Undertaking/Discharge/Dismissal – 2.4%

Of the charges that led to imprisonment, majority were sentenced to a term that was between 1 and 2 years (48.6% of all charges that led to imprisonment). The longest term imposed was between 4 and 5 years (1.4%).7

In the same period, 11 charges of Firearms Act 1996 (Vic) s 7B(2) – Possess, Carry or Use an Unregistered Category E Handgun were also heard in Victorian higher courts. These charges resulted in Imprisonment (45.4%), Youth Justice Centre Order (27.3%), and Community Correction Order (27.3%).8

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.9
gun possession charges at the Magistrates' Court

Sentencing in the Magistrates’ Courts

In the Magistrates’ Courts, 455 cases (518 charges) of Firearms Act 1996 (Vic) s 7B(1) – Possess, Carry or Use General Category Unregistered Handgun were heard from 1 July 2013 to 30 June 2016. These resulted in the following sentences:

  • Imprisonment – 38.0%
  • Community Correction Order – 27.0%
  • Fine – 19.1%
  • Adjourned Undertaking/Discharge/Dismissal – 5.7%
  • Wholly Suspended Sentence – 5.5%
  • Partially Suspended Sentence – 3.3%
  • Other – 0.7%
  • Youth Justice Centre Order – 0.4%
  • Community-Based Order – 0.2%

Of the cases that led to imprisonment, majority were sentenced to a term that was between 6 and 12 months (30.1% of all cases that led to prison). The highest term imposed was more than 36 months but this was least imposed at only 0.6%.

For Community Correction Orders (CCO), the longest term imposed was more than 24 months (6.2%, non-aggregate). Majority of CCO terms imposed were somewhere between 12 and 18 months (47.3%, non-aggregate).10

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014. Community-based orders were also abolished in Victoria in 16 January 2012, effective immediately for all offences committed before, on, or after this date.11

Other important resources

 



[1] Firearms Act 1996, Section 7B(1).
[2] Firearms Act 1996, Section 7B(2).
[3] Kaw Teh v R (1985) 157 CLR 523.
[4] R v Maio [1989] VR 281; R v Mateiasevici [1999] VSCA 120.
[5] Above n 1.
[6] Above n 1.
[7] Sentencing Advisory Council. “SACStat Higher Courts – Firearms Act 1996 (Vic): s 7B(1) – possess, carry or use an unregistered general category handgun.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_96_66_7B_1.html (accessed September 2, 2019).
[8] Sentencing Advisory Council. “SACStat Higher Courts – Firearms Act 1996 (Vic): s 7B(2) – possess, carry or use an unregistered category E handgun.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_96_66_7B_2.html (accessed September 2, 2019).
[9] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed September 2, 2019).
[10] Sentencing Advisory Council. “SAC Statistics – Firearms Act 1996 (Vic): s 7B(1) – possess, carry or use general category unregistered handgun.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/96_66_7B_1.html (accessed September 2, 2019).
[11] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed September 2, 2019).