Prohibited Weapons

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– section 5 of the Control of Weapons Act 1990

A person found in possession of a prohibited weapon will be charged with being in possession of a prohibited weapon contrary to section 5 of the Control of Weapons Act 1990 (Vic) if he/she does not have a license to possess it.
Gun Pointed to a Hand
This is a summary offence and hence will be heard by the Magistrates’ Court.
 
What is the legal definition of ‘Prohibited Weapon’?
Section 3 of the Act defines ‘prohibited weapon’ as ‘an imitation firearm or an article that is prescribed by the regulations to be a prohibited weapon’.

Schedule 3 of the Control of Weapons Regulations lists weapons which are prohibited.

Examples of Prohibited Weapons
  • Having a taser in your house
  • Having an imitation firearm
  • Having a flick knife in your bag without a lawful excuse
Legislation
The legislation for this offence can be found on section 5 of Control of Weapons Act 1990.

Elements of the offence
The Prosecution must prove that:

  1. the accused had a prohibited weapon; and
  2. the accused did not have an exception under section 8B of the Act.
“Can the Police prove that the weapon was in your possession?”

A defence to this may arise where an accused did not intend to possess the prohibited weapon. The Act also provides for a defence if an accused is an employee of a person who has the approval to possess a prohibited weapon, and was using it in the course of their employment.

Questions in cases like this
  • Do you have a permit for the weapon?
  • Do you have a lawful reason for possessing the weapon?
  • Were you in fact in possession of the weapon?
If you have been charged with this offence, you should call us to discuss your case and possible defences. Deciding on whether to plead guilty or not has huge consequences for you and should be made after proper discussion with one of our experienced criminal lawyers.
 
The maximum penalty for this offence is a fine of 240 penalty units or imprisonment for 2 years.
 
Sentencing in the higher courts
From 1 July 2011 to 30 June 2016, there were 130 charges of Possess, Use or Carry Prohibited Weapon Without Exemption/Approval – section 5(1)(e) that were heard in the higher courts of Victoria. These charges resulted in the following sentences:

  • Imprisonment – 50.8%
  • Wholly Suspended Sentence – 6.2%
  • Community Correction Order – 6.9%
  • Fine – 31.5%
  • Adjourned Undertaking/Discharge/Dismissal – 4.6%
Of the charges that led to imprisonment, 89.4% were sentenced to a period that was less than a year. Most of the fines imposed were below $1,000 (80.5% of those who were fined) while the highest amounts imposed fell between $1,000 and $2,000 (14.6%).1

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.2

Sentencing in the Magistrates’ Courts
In the Magistrates’ Courts, 140 cases (178 charges) of Possess/Use/Carry Prohibited Weapons – section 5(1)(e) were heard from 1 July 2013 to 30 June 2016. These cases resulted in the following penalties:

  • Imprisonment – 20.7%
  • Partially Suspended Sentence – 3.6%
  • Wholly Suspended Sentence – 15.0%
  • Community Correction Order – 25.0%
  • Fine – 26.4%
  • Adjourned Undertaking/Discharge/Dismissal – 9.3%
The longest term of imprisonment imposed was 36+ months (3.5% of those who were sentenced to prison) but the most frequently imposed period was between 3 and 6 months (27.6%).

The highest amount of fine imposed was between $3,000 and $4,000 but this was the least imposed and was applied in only 1.8% of the charges that led to fines (aggregate). The majority of those who were fined fell under the categories “$1,000 < $2,000” (26.3% for aggregate) and “$2,000 < $3,000” (26.3% for aggregate).3

There were also 47 cases (54 charges) of Possess Prohibited Weapon in Licensed Premises – section 5(1A) that were heard in the Magistrates’ Courts during the same period. These cases resulted in the following penalties:

  • Imprisonment – 21.3%
  • Partially Suspended Sentence – 2.1%
  • Wholly Suspended Sentence – 2.1%
  • Community Correction Order – 38.3%
  • Fine – 25.5%
  • Adjourned Undertaking/Discharge/Dismissal – 10.6%
Of the prison periods imposed, the longest was between 24 and 36 months (10.0% of those who were sentenced to imprisonment). The majority were sentenced to a term that was between 3 and 6 months (40.0%).

Of the financial penalties imposed, the highest was between $2,000 and $3,000 and this was applied in 18.8 of the charges that led to aggregate fines. But majority of those who were fined fell under the $1,000 < $2,000″ category (56.3% for aggregate).4

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.5
 
Other important resources
Case studies related to Prohibited Weapons
[1] SACStat Higher Courts – Control Of Weapons Act 1990 (Vic) : s 5(1)(e) – possess, use or carry prohibited weapon without exemption/approval < https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_90_24_5_1_E.html > [2] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence > [3] SAC Statistics – Control Of Weapons Act 1990 (Vic) : s 5(1)(e) – possess/use/carry prohibited weapons < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/90_24_5_1_e.html > [4] SAC Statistics – Control Of Weapons Act 1990 (Vic) : s 5(1A) – possess prohibited weapon in licensed premises < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/90_24_5_1A.html > [5] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >
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