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The State of Victoria has in recent times seen an increase in the use of illegal firearms. Firearms offences and penalties in Victoria are legislated by the Firearms Act 1996 (Vic).
According to the Australian Criminal Intelligence Commission, there are an estimated 260,000 illicit firearms in the Australian market. These illegal firearms may have roots in either the operation of 'villain' gun dealers or even licensed firearm owners.
Whatever the case, firearm offences are increasingly becoming a source of concern to the Victorian Police and the public. As such, the Victorian Police in January 2021 unveiled a new unit dedicated to investigating the use and distribution of illegal firearms. This unit is the Illicit Firearms Unit (IFU).
If an individual is convicted in a Victorian court for a firearms offence, the offence will show up as a disclosable court outcome (DCO) on a Victorian Criminal History Check result.
This article will look at what weapons the law considers as firearms, actions that contradict the Firearms Act 1996 (Vic), and the punishment accompanying such contraventions. You will also get to know the possible defences available to anyone charged with a firearms offence.
A firearm is a device that can discharge shots, bullets or other missiles. Such devices are broadly classified into two categories: handgun and longarm.
A handgun is a firearm that:
On the other hand, a longarm is any firearm that does not fall into the handgun category. Examples include machine guns, shotguns, rifles and the likes.
Whatever the category, firearms are typically dangerous when let on the loose. Therefore, the law does not permit an individual to possess, use or carry around a firearm without a license. Doing so will attract specific punishments - usually a fine or some years of imprisonment.
Nonetheless, obtaining a license may not be enough. The law also requires individuals to register their firearms. It means having a license to use a firearm does not automatically make the firearm registered.
Before a Victorian Court can find a person guilty of a firearm offence, the prosecution must prove certain elements beyond a reasonable doubt. These elements include:
#1. That there was a possession of a firearm
The prosecution must first establish that the accused offender was in actual possession of a firearm and had complete control of it. They must also prove that the accused had the intention to have the firearm in his possession. It wasn't just some random mistakes or a defence mechanism.
#2. That the firearm was not registered
The second element to be established is that the firearm was not registered. To prove whether it was registered or not, the accused will need to provide evidence of registration. This evidence might include the serial number of the firearm for identification purposes.
As previously stated, anyone caught in possession of an unregistered firearm or weapon or with a registered firearm but is unlicensed will be subject to punishment by the law. But these are not the only actions that are firearm offences under the law. Other firearm crimes include:
#1. Possession of Cartridge Ammunition
Section 124 of the Firearms Act 1996 (Vic) makes possession of cartridge ammunition an offence punishable by law. However, there are a few exceptions where a person can possess cartridge ammunition without contravening the law. These 'exempted' people are those who:
#2. A prohibited person in possession of a firearm
Simply put, a person is ‘prohibited’ from having or using a firearm if:
The law prohibits anyone who falls under any of these categories from having firearms. Nonetheless, they may seek to reverse their status as prohibited persons under Section 189 of the Firearms Act 1996 (Vic) by applying to the courts.
Such applicants must first prove to the courts that they will not be a risk to the city if the Court permits them to have possession of firearms. They must also provide licit reasons as to why they want to have or use firearms.
In addition to the above factors, the Victorian Court will also consider whether the applicant has a track record of using firearms illegitimately and any interests they have in firearms.
#3. Storage of Firearms or Ammunition offences
The law expects specific duties from every individual who it has licensed to use firearms. This expectation is that they store their firearms properly when the firearms are not in use. Under Section 129 of the Firearms Act 1996 (Vic), it is an offence to keep or store firearms carelessly.
When storing firearms, it is best to place them in thongs that cannot be penetrated easily in the case of an accidental discharge. Hardwood, steel, and similar materials are some of the best options a person can use to keep firearms safely.
#4. Use of Firearm in a Prohibited Place
Generally, there are certain places the law prevents the use of firearms. A town, for instance, or somewhere that has lots of people in it. Another place is a thoroughfare or any place used by the public for passage with vehicles.
Using firearms in such places amounts to the commission of an offence under section 130 of the Firearms Act 1996 (Vic).
However, even though the law essentially prohibits the use of firearms in populated places, there are certain people who the law permits to use guns within these restricted areas. Such persons are typically those who require firearms to carry out their duties effectively. These individuals include police officers, prison officers and security guards.
#5. Safekeeping of Firearms
Any person with a registered weapon needs to keep that firearm securely. This obligation is to prevent the use of illicit firearms if it is stolen or lost. In addition, this safekeeping of firearms ensures that these dangerous devices do not get into the wrong hands or get used for the wrong purposes.
#6. Possession of imitation firearms
Apart from the Firearm Act of 1996, there are specific legislations that regulate the use of firearms. For instance, the Control of Weapons and Firearms Acts Amendment Act 2012 (Vic) makes it a crime for an individual to be in possession of an imitation firearm without an exemption or approval.
An imitation firearm is a device that may look like a firearm and may be mistaken for one but is not a firearm. Anyone who wants to possess, carry, or use imitation firearms must obtain a permit. They can only receive this permit after getting a Chief Commissioner of Police Prohibited Weapons Approval or a Governor in Council Exemption.
#7. Use of Prohibited Weapons
There are certain weapons that the law does not classify as ‘firearms’ but are still considered dangerous. Any person who intends to have such weapons must first obtain an exemption from the Chief Commissioner. Some of these prohibited weapons include:
Without an exemption, selling or having these weapons is an offence and is punishable under the law.
#8. Possession of Firearms in Premises
The Firearms Amendment (Trafficking and Other Measures) Act 2015 (Vic) is one of the most recent legislation regulating the possession of firearms in Victoria. One of its provisions is that a person who has a firearm on their land, premises, or vehicles left in their care will be deemed as being in possession of firearms.
#9. Illegal Manufacture of Firearm
Under the Firearms Amendment (Trafficking and Other Measures) Act 2015 (Vic), the illegal manufacturing of firearms is an offence punishable by the law.
#10. Acquisition or Disposal of Unregistered Firearms
The law provides that a person should not acquire or dispose of more than three unregistered firearms within a window of 12 months. The law considers doing so firearm trafficking.
Depending on the type of firearm offence, the punishments differ. Some of these punishments are:
Generally, in deciding the sentencing of firearm offenders, the Court will usually consider certain factors, including:
#1. Measure of Offence
In evaluating the severity of an offence, the Court in adjudicating over a Firearm case would typically look into:
#2. Functionality of Firearm
The Victorian Court may also take into consideration the functionality of the firearm. The Court would attach more severity to situations that involve a working firearm. It'll consider the damage it can cause and may impose a greater sentence than it would on an offender caught with a non-functional gun.
#3. The Cause of Offence
The Court might likely look into the cause of the offence. For example, where the accused committed the crime in self-defence or in reaction to fear, the Court will probably give the offender a less severe sentence.
Anyone charged with a firearm crime can plead certain defences to prevent being penalised or to receive a lesser punishment. Some of these defences include:
#1. Lack of Intention
With this defence, the accused asserts that they did not have the intention to possess the firearm. The goal is to prove that the accused was likely ignorant that the firearm was in their possession. Alternatively, they may establish that the possession was an unavoidable mistake.
#2. No physical control
One of the elements the prosecution must prove in firearm offences is that the accused had the firearm in their possession and had physical control of it. If the accused has evidence showing that they had no physical control of the gun, they have a strong defence that may likely work in their favour.
In every case, the burden of proving that all the elements of the offence are present must lie on one of the parties. Usually, this onus of proof falls on the prosecution. Whoever accuses someone of a crime must prove that guilt. The same applies in cases involving a firearm - the onus of proof is on the prosecution.
The primary law regulating the possession, use, purchase, manufacture, and supply of firearms in Victoria is the Firearms Act 1996 (Vic). Contravening its provisions amounts to a serious offence with grave consequences.
Therefore, it is advisable for anyone charged with any of the offences to seek the assistance of a legal team experienced in handling such cases in Victorian law courts.
If an individual is found guilty of a firearms offence in Victoria, the offence will show up as a disclosable court outcome (DCO) on the results of their criminal background check.
Individuals can obtain a criminal history check online via the Australian National Character Check - ANCC® website.
Firearms Act 1996 (Vic) - https://www.legislation.vic.gov.au/in-force/acts/firearms-act-1996/096
Dangerous Goods Act (1985) (Vic) - https://www.legislation.vic.gov.au/in-force/acts/dangerous-goods-act-1985/107
Criminal Organisations Control Act 2012 (Vic) - https://www.legislation.vic.gov.au/in-force/acts/criminal-organisations-control-act-2012/015
Family Violence Protection Act 2008 (Vic) - https://www.legislation.vic.gov.au/in-force/acts/family-violence-protection-act-2008/056
Personal Safety Intervention Orders Act 2010 (Vic) - https://www.legislation.vic.gov.au/in-force/acts/personal-safety-intervention-orders-act-2010/025
Control of Weapons and Firearms Acts Amendment Act 2012 (Vic) - https://www.legislation.vic.gov.au/as-made/acts/control-weapons-and-firearms-acts-amendment-act-2012
Firearms Amendment (Trafficking and Other Measures) Act 2015 (Vic) - https://www.legislation.vic.gov.au/as-made/acts/firearms-amendment-trafficking-and-other-measures-act-2015
Crimes Act 1958 (Vic) - https://www.legislation.vic.gov.au/in-force/acts/crimes-act-1958/294
Australian Criminal Intelligence Commission (Illicit Firearms in Australia) - https://www.acic.gov.au/sites/default/files/2020-08/illicit_firearms_in_australia.pdf
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