A man was refused bail after appearing before Burwood Local Court on 16 July 2020, after firearms and drugs were seized in Sydney’s west earlier this month.
On 2 July 2020 at about 8:45am, the Auburn Police Area Command were called to a unit block on James Street, Lidcombe, after reports of an unknown man acting suspiciously.
The man was charged with possession of a shortened firearm (not pistol) without authority, not keeping firearm safely, possessing unregistered firearm in a public place and two counts of possessing a prohibited drug.
Police will allege in court that prior to their arrival at the scene, the man discarded a shotgun, pistol, cannabis and other items, in a nearby garden, which were later recovered by officers.
Can you possess firearms in NSW?
In New South Wales, legislation regulating firearms has been established confirming that firearm possession is a privilege that is conditional on the overriding need to ensure public safety. There are strict controls on the possession, usage, and storage of firearms to ensure the safety of the community.
A person must be the holder of a current NSW firearms licence or permit in order to possess or use a registered firearm. A licence or permit will have a category attached, which indicates what category of firearm a person can possess legally (e.g. category A includes air rifles and some shotguns).
- If a person is found to possess or use a firearm generally (without a licence or permit), they face imprisonment up to 5 years (s 7A of the Act).
- If a person is found to possess or use a pistol or prohibited firearm (without a licence or permit), they face imprisonment up to 14 years (s 7 of the Act).
In accordance with section 4 of the Act, a “firearm” refers to:
- a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include a paintball marker within the meaning of the Paintball Act 2018 or anything declared by the regulations not to be a firearm.
In NSW, a person will be found to be in “possession” of a firearm under section 4A of the Act if the firearm is in or on any premises owned, leased or occupied by, or in the case, control or management of the person.
The possible defences a person can raise include:
- If the firearm was placed or brought into or on the premises by someone (or on behalf of someone) who was lawfully authorised to possess a firearm
- If the person did not know or could not reasonably be expected to have known that the firearm was in or on the premises
- According to evidence, the person was not in possession of the firearm
A person who possesses a firearm carries a significant responsibility of ensuring their own safety and the safety of others. Section 39 of the Act stipulates that a person in possession of a firearm must take all reasonable precautions to ensure:
- Its safekeeping, and
- That it is not lost or stolen, and
- That it does not come into the possession of a person who is not authorised to possess the firearm.
A person who is found guilty of this offence can be fined or imprisoned for 2 years. This demonstrates the importance that a licenced firearms holder is bound to act in a safe and responsible manner.
Since legislation considers firearm possession as a privilege, the courts have taken the view that harsh penalties need to be imposed to deter offenders. Haesler SC DCJ in R v Cochran [2019] NSWDC 462 (Cochran) made it clear that an “assessment of the objective gravity of the offence” is always required when considering punishment. This means the court will consider various factors, including how lethal the firearm is, or whether there are any conceivable reasons a person would possess such a firearm.
Imitation firearms – they’re harmless, aren’t they?
There are special provisions regarding imitation firearms under section 4D of the Act, which specifies that the Act also applies to an imitation firearm in the same way it applies to a firearm, except that:
- Only a permit may be issued authorising the possession or use of an imitation firearm
- An imitation firearm is not required to be registered, and
- If a person has a permit, they do not need a permit to acquire an imitation firearm
The recent case of Cochran, included circumstances where a man was found with multiple firearms, including a small replica pistol. His Honour also made it clear that possession of even replica firearms poses a significant risk to the safety of the community. His Honour points out that “just because they can be bought on the internet does not make them legal. They are not toys, they are not regarded as toys, the police do not regard them as toys and the community should not regard them as toys”.
It is therefore important to understand the seriousness of possessing not just a prohibited firearm, but also any imitation firearm even if it is easily accessible. Such comments from the New South Wales District Court reinforce the notion that possessing a firearm is a privilege, and that licenced firearms holders must act in a safe and responsible manner.
If you have been arrested or the police are looking to interview you regarding an investigation, Pannu Lawyers is able to advise you of your rights at every step of the criminal investigation & trial process. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. If your matter is at Blacktown Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.
This above information is intended as general information and is not intended to be relied on as legal advice. The part of this article is taken from an article published by the NSW Police Force.
