Firearm Possession in Victoria

There are three main offences relating to firearms without a licence; firearm possession, carriage and use. In July 2017, the law was amended to increase penalties for individuals who are found to possess unregistered firearms. Prior amendments in 2014 also removed a Court’s ability to order suspended sentences for firearms offences. In this article, we discuss possession of a firearm, the elements relating to this offence, possible penalties and defences to the charge.

Possession of a Firearm

In Victoria, individuals are not permitted to ‘possess, carry or use’ a longarm or handgun (‘firearm’).[1] It is also an offence for a prohibited person (individual who is serving a term of imprisonment or is subject to other orders) to possess a firearm.[2] A firearm is a specific ‘device to discharge a bullet or other missile’, such as rifles, shotguns and handguns.[3] The legislation classifies offences relating to either handguns (a firearm capable of being used by one hand, and not exceeding 65cm in length) or longarm firearms (all other firearms other than a handgun).[4] Importantly, the law does not discriminate between genuine and imitation firearms.

There are other offences relating to the use, carriage, manufacturing or trafficking of firearms and for possession of controlled weapons (swords, knifes, tasers knuckle dusters), which are outside the scope of this article.[5]

Elements of the Firearm Possession Offence

There are two elements required to be established by the Police beyond reasonable doubt:

1. That you possessed a firearm; and
2. The firearm was not registered.

The first element has a physical and conduct element. Firstly, you must have had the ability to physically control the firearm and have had possession or control of it.[6] Secondly, the Police must also establish that you had an intention to possess the firearm.[7]

The second element to be established is that the firearm alleged to have been in possession was not adequately registered in Victoria. Registration means that you have permission to both acquire and possess the firearm. Evidence of registration includes identification of the firearm by a serial number.[8]

Possible Penalties

Unauthorised possession of a firearm has a maximum penalty of 2 years imprisonment. Carrying a firearm without a licence carries a penalty of between 2-7 years (depending on the category of firearm).[9] A maximum penalty of up to 10 years applies for individuals classified as prohibited person (individual serving a term of imprisonment for an indictable offence, assault, drug or weapons offence).[10]

Firearm Possession Defences

If you have been charged with firearm possession, you may have a defence available to you. You may be able to argue that you did not have an intention to possess the firearm. You may be able to raise a defence of honest and reasonable mistake if you honestly believed the firearm was registered. Other defences include that firearm possession cannot be established, such as if you did not have physical control of the firearm at the time the offence is alleged. Finally, you may be able to base your defence on a factual dispute or mistaken identity. However, it is critical to your case to seek legal advice as soon as practicable so that you can be provided with appropriate advice based on the circumstances relevant to your matter.

[1] Firearms Act 1996 (Vic) s 6A, 7B.
[2] Firearms Act 1996 (Vic) s 5.
[3] Firearms Act 1996 (Vic) s 3.
[4] Firearms Act 1996 (Vic) s 3.
[5] Possession of 2 or more firearms may be deemed to be ‘Possession of a traffickable quantity of unregistered firearms’, which can carry a penalty of up to 10 years imprisonment under the Firearms Act 1996 (Vic) s 7C.
[6] Kaw Teh v R (1985) 157 CLR 523.
[7] R v Mateiasevici [1999] VSCA 120.
[8] Firearms Act 1996 (Vic) s 8A
[9] Firearms Act 1996 (Vic) s 6.
[10] Firearms Act 1996 (Vic) s 3,5.