– 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.
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
LegislationThe legislation for this offence can be found on section 5 of Control of Weapons Act 1990.
Elements of the offenceThe Prosecution must prove that:
- the accused had a prohibited weapon; and
- 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?
The maximum penalty for this offence is a fine of 240 penalty units or imprisonment for 2 years.
Sentencing in the higher courtsFrom 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%
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’ CourtsIn 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 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 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
- SACStat Higher Courts – Control Of Weapons Act 1990 (Vic) : s 5(1)(e) – possess, use or carry prohibited weapon without exemption/approval
- SAC Statistics – Control Of Weapons Act 1990 (Vic) : s 5(1A) – possess prohibited weapon in licensed premises
Case studies related to Prohibited Weapons
- Deferring a Sentence for a Youth Charged With Numerous Offences
- Diversion for Prohibited Weapon Offences
- Community Corrections Order (CCO) for Family Violence
- Dismissing a Possess Drug of Dependence Charge
- Withdrawing Reckless Conduct Endangering Life and Other Charges