Prohibited person possessing firearms can be a serious charge depending on the circumstances of the offence. This charge is laid where a person has been declared to be a prohibited person and they are found with a gun.
A person most commonly becomes a prohibited person where they are convicted of firearms offences or a breach of a family violence/intervention order. The police may apply for a person to be prohibited from possessing firearms at all. This leads to much higher penalties if they are then found with a firearm. If the firearm is unregistered the offence again becomes much more serious.
A person most commonly becomes a prohibited person where they are convicted of firearms offences or a breach of a family violence/intervention order. The police may apply for a person to be prohibited from possessing firearms at all. This leads to much higher penalties if they are then found with a firearm. If the firearm is unregistered the offence again becomes much more serious.
Sentencing
Sentencing in the higher courts of Victoria
Sentencing in the Magistrates’ Courts of Victoria
Which court will the case be heard in?
Any related case is likely to end up in the County Court.Examples of Prohibited Person Possessing Firearms
- You are the respondent in an intervention order matter and you are prohibited from possessing a firearm. You find the intervention order unfair and you decide to keep your firearm anyway.
What is the legal definition of Prohibited Person Possessing Firearms?
A prohibited person must not possess, carry or use a firearm.Legislation
The legislation for this offence can be found in section 5 of Firearms Act 1996.Elements of the offence
To prove this charge, the Prosecution must prove the following beyond reasonable doubt:- The accused is a prohibited person; and
- The accused possessed, carried or used a firearm
Prohibited person is defined in section 3 of the Firearms Act 1996. See this section for a detailed definition.
It includes, but is not limited to, a person who is serving a term of imprisonment for particular offences, a person who is subject to a final order under the Family Violence Protection Act 2008, a person serving a community correction order with a supervision condition attached, and a person who has been found guilty of a Firearms offence in the last 12 months.
Possess, carry or use
Possession means that the firearm was in the person’s custody or control. The firearm does not have to be on the accused’s person – it will probably be sufficient if it is in their bedroom or their car, if they are the person with control over the bedroom or car. ‘Carry’ or ‘use’ have their ordinary meaning.
A firearm
Firearm is defined in section 3 of the Firearms Act 1996. It means any device, whether or not assembled or in parts:
- which is designed or adapted, or is capable of being modified, to discharge shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means; and
- whether or not operable or complete or temporarily or permanently inoperable or incomplete
- an industrial tool powered by cartridges containing gunpowder or compressed air or other gases which is designed and intended for use for fixing fasteners or plugs or for similar purposes; or
- a captive bolt humane killer; or
- a spear gun designed for underwater use; or
- a device designed for the discharge of signal flares; or
- a device commonly known as a kiln gun or ring blaster, designed specifically for knocking out or down solid material in kilns, furnaces or cement silos; or
- a device commonly known as a line thrower designed for establishing lines between structures or natural features and powered by compressed air to other compressed gases and used for rescue purposes, rescue training or rescue demonstration; or
- a device of a prescribed class;
Defences
A defence to this may arise where an accused was not aware they are a prohibited person or where they thought they had a licence. The other defence that is run often is that the person was not in possession of the gun. The police may have found it at a house but it was not the responsibility of the accused.Deciding on whether to plead guilty or not has huge consequences for you and should be made after proper discussion with a criminal lawyer.
Questions in cases like this
- Are you a ‘prohibited person’?
- Were you actually in possession of a firearm?
Maximum penalty for section 5 of the Firearms Act 1996
The offence of Prohibited Person Possessing Firearms (s5 of the Firearms Act 1996) may result in a fine of 1,200 penalty units or 10 years imprisonment.Other important resources
- SACStat Higher Courts – Firearms Act 1996 (Vic) : s 5(1) – prohibited person possess, carry or use a firearm
- SACStat Higher Courts – Firearms Act 1996 (Vic) : s 5(2) – prohibited person possess a silencer or other prescribed item
- SAC Statistics – Firearms Act 1996 (Vic) : s 5(1) – prohibited person possess, carry or use a firearm
- SAC Statistics – Firearms Act 1996 (Vic) : s 5(2) – prohibited person possess a silencer or other prescribed item
- VCC summaries – firearms offences: Sentencing decisions from 1 January 2016 to 30 November 2017, arranged by severity of total effective sentence
Case studies related to Prohibited Person Possessing Firearms
- Pleading Guilty to Drug and Firearm Charges
- Summary Jurisdiction Application for Assault Charges
- Prohibited person possessing an unregistered firearm, plea in the Magistrates’ Court
