Prohibited Person Possessing Firearms

– section 5 of the Firearms Act 1996

Person Possessing FirearmProhibited 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.

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.
Questions in cases like this
  • Are you a ‘prohibited person’?
  • Were you actually in possession of a firearm?
What are some of the possible defences to Prohibited Person Possessing Firearms?

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.

Maximum penalty and court that deals with this charge

This offence may result in a fine of 1,200 penalty units or 10 years imprisonment. Any related case is likely to end up in the County Court.

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:

  1. The accused is a prohibited person; and
  2. The accused possessed, carried or used a firearm

Prohibited person
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:

  1. 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
  2. whether or not operable or complete or temporarily or permanently inoperable or incomplete

Call Doogue + George
A firearm does not include:

  1. 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
  2. a captive bolt humane killer; or
  3. a spear gun designed for underwater use; or
  4. a device designed for the discharge of signal flares; or
  5. 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
  6. 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
  7. a device of a prescribed class;
Sentencing in the higher courts

There were 25 cases (268 charges) of Prohibited Person Possess, Carry or Use a Firearm – section 5(1) that were heard in the higher courts of Victoria from 1 July 2011 to 30 June 2016. These resulted in the following sentences: imprisonment – 72%, partially suspended sentence – 12%, wholly suspended sentence – 12%, and Community Correction Order – 4%.

Majority of those who were sent to prison received a term that was between 2 and 3 years (27.8%) while the longest term imposed was between 4 and 5 years (22.2%).1

Meanwhile there were also 10 charges of Prohibited Person Possess, Carry or Use a Firearm – section 5(2) that were heard in the higher courts of Victoria within the same period. These charges led to imprisonment (90%) and Community Correction Order (10%).2

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.3

Sentencing in the Magistrates’ Courts

In the Magistrates’ Courts of Victoria, 843 cases (1,033 charges) of Prohibited Person Possess, Carry or Use a Firearm – section 5(1) were heard from 1 July 2013 to 30 June 2016. These cases resulted in the following penalties:

  • Imprisonment – 57.7%
  • Partially Suspended Sentence – 4.3%
  • Wholly Suspended Sentence – 5.8%
  • Youth Justice Centre Order – 1.0%
  • Community Correction Order – 18.7%
  • Fine – 9.1%
  • Other – 1.3%
  • Adjourned Undertaking/Discharge/Dismissal – 2.1%

Of the cases that resulted in imprisonment, the majority were sentenced to a term that was between 6 and 12 months (31.5%). The longest term imposed was 36+ months.

Of those that resulted in fines, majority were sentenced to an amount that was between $1,000 and $2,000 (34.6% for aggregate and 9.4% for non-aggregate). The highest amount imposed was $20,000 or more (2.8% for aggregate).4

There were also 50 cases (51 charges) of Prohibited Person Possess a Silencer or Other Prescribed Item – section 5(2) that were heard during the same period. These cases resulted in the following sentences:

  • Imprisonment – 64.0%
  • Partially Suspended Sentence – 2.0%
  • Wholly Suspended Sentence – 4.0%
  • Community Correction Order – 12.0%
  • Fine – 14.0%
  • Adjourned Undertaking/Discharge/Dismissal – 4.0%

ImprisonmentThe longest prison term imposed was 36+ months (3.1%) but most of those who were sentenced to imprisonment received a period that was between 6 and 12 months (34.4%).

The highest fine imposed was between $5,000 and $10,000 (10.0% for aggregate) but the majority were sentenced to an amount that was between $500 and $1,000 (20.0% for both aggregate and non-aggregate).5

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.6

Other important resources
Media information
Case studies related to Prohibited Person Possessing Firearms

 



[1] SACStat Higher Courts – Firearms Act 1996 (Vic) : s 5(1) – prohibited person possess, carry or use a firearm < https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_96_66_5_1.html >
[2] SACStat Higher Courts – Firearms Act 1996 (Vic) : s 5(2) – prohibited person possess a silencer or other prescribed item < https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_96_66_5_2.html >
[3] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >
[4] SAC Statistics – Firearms Act 1996 (Vic) : s 5(1) – prohibited person possess, carry or use a firearm < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/96_66_5_1.html >
[5] SAC Statistics – Firearms Act 1996 (Vic) : s 5(2) – prohibited person possess a silencer or other prescribed item < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/96_66_5_2.html >
[6] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >