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.

Statutory provisions: Gun possession charges – Unregistered Handgun

The legislation that comes from section 7B of the Firearms Act 1996 (‘the Act’) reads as follows:

  1. A person must not possess, carry or use a general category handgun that is not registered.
     
    Penalty: For a first offence, 600 penalty units or 7 years imprisonment;
    For a second or subsequent offence, 1200 penalty units or 10 years imprisonment.
     
  2. A person must not possess, carry or use a category E handgun that is not registered.
     
    Penalty: For a first offence, 1800 penalty units or 14 years imprisonment;
    For a second or subsequent offence, 2100 penalty units or 17 years imprisonment.

In terms of a category E handgun, this offence is seen as more serious by the courts compared to other gun possession charges. This is shown by the increase in maximum penalty when compared to the maximum penalties for possession of a general category handgun that is not registered.

gun possession charges at the Magistrates' CourtAny indictment or summons for this charge will generally be before the Magistrates’ Court. More aggravated circumstances for instance such as another offence at the same time of, say, aggravated burglary or armed robbery for example will mean the matter goes before the higher courts. The circumstances surrounding your charges will determine which court process the matter will follow.

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.1 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.2

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.3

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.4

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.

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.

Sentencing outcomes in the Magistrates’ court

The Sentencing Advisory Council has released sentencing statistics for the sentencing of possess, carry or use unregistered handgun matters in the Magistrates’ Court between July 2011 to June 2014. Over the three year period, 421 cases were before the Court. 25.7% of people sentenced received a period of imprisonment, 17.8% received a wholly suspended period of imprisonment, 5.0% received a partially suspended sentence, 23.2% received some form of community based order and 18.5% received a fine.

The most common length of imprisonment imposed was between 3 and 6 months with 25.0% of persons imprisoned sentenced within that range.

Please note that suspended sentences were abolished in Victoria for all offences, including gun possession charges, committed on or after 1 September 2014.

Sentencing outcomes in the higher courts

The Sentencing Advisory Council has released sentencing statistics for the sentencing of possess, carry or use unregistered handgun matters in the County and Supreme Court’s between July 2010 to June 2015. Over the five year period, 68 cases were before the Court. 64.7% of people sentenced received a period of imprisonment, 8.8% received a wholly suspended period of imprisonment, 1.5% received a partially suspended sentence, 10.3% received some form of community based order and 11.8% received a financial penalty.

The most common length of imprisonment imposed was less than 12 months with 52.3% sentenced within that range.

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, including gun possession charges, will not have this available as a sentencing option.

To view sentencing decisions by Victorian County Courts for firearms offences, visit this page.



[1]Kaw Teh v R (1985) 157 CLR 523.
[2]R v Maio [1989] VR 281; R v Mateiasevici [1999] VSCA 120.
[3]Above n 1.
[4]Above n 1.