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Prohibited Weapons

In Victoria, the charge of Possessing Prohibited Weapons is found in section 5 of the Control of Weapons Act 1990. It is a criminal offence for a person to be found in possession of a prohibited weapon.

Have you been accused of Prohibited Weapons? If you have, you must contact our firm to arrange a private and confidential conference with one of experienced criminal defence lawyers. At one end of these type of offences the consequences of being found guilty of being in Possession of Prohibited Weapons can be serious. It could affect your security licence or mean that your firearms have to be forfeited.

Police Interview
We can answer your important questions about what you need to know about the Police interview process. We can advise you of your rights and obligations, so you do not say something you do not have to We can advise you:

  1. How to handle the Police interview,
  2. The consequences of answering questions during interview,
  3. The consequences of providing information you are not required to.
The starting point is that the Police do not interview you in a search for the truth. They believe you have committed an offence and they are just trying to get evidence to establish that.

We can also give you advice on what to do if the Police execute a search warrant on your home or place of work to search for weapons. Make sure you speak with us before you speak with the Police or agree to attend a Police interview.

If you feel that you will become overwhelmed during the Police interview, you should think about having one of our lawyers attend the Police station with you to sit in on the interview.

Pleading Not Guilty
Our lawyers have successfully represented many people charged with being in Possession of Prohibited Weapons. Our lawyers thoroughly prepare cases to ensure that you get the best possible defence in Court. Cases are won through careful preparation before you attend Court. Our lawyers invest the time needed to make sure no stone is left unturned. There is a lot of evidence that needs to be gathered from Police.

Preparing your case early is key to a great outcome.

Pleading Guilty
We can also guide you if you decide to plead guilty to being in Possession of Prohibited Weapons. We work closely with our clients and their families to make sure they understand the likely outcomes. We prepare pleas of guilty by:

  • Referring clients to relevant courses,
  • Help clients gather character references, and
  • Prepare careful and sensible plea submissions.
We have achieved great outcomes in the past because of our commitment to our clients’ cases.
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 (s5 of the Control of Weapons Act 1990) 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


[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 >