Possess Prohibited Weapon

In NSW, possessing a prohibited weapon carries a maximum penalty of 14 years imprisonment.

The Weapons Prohibition Act 1998 sets out the requirement for individuals to possess permits for weapons and in some circumstances when an individual is exempt from holding a permit.

In NSW, a court can impose any of the following penalties for this charge:

• Prison Sentence
• Home Detention
• Intensive Corrections Order (ICO)
• Suspended Sentence
• Community Service Order (CSO)
• Community Corrections Orders (CCO)
• Good Behaviour Bond
• Fine
• Section 10A
• Conditional Release Order (CRO)
• Section 10

The Offence of Possessing a Prohibited Weapon:

The offence of Possessing a Prohibited Weapon is contained in section 7(1) of the Weapons Prohibition Act 1998 which states: a person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit.

Section 7(2) outlines that even if an individual holds a permit if the use of the weapon is outside of scope of what the permit allows, they will be guilty of an offence.

What is a Prohibited Weapon?

The definition of a ‘prohibited weapon’ includes an number of items including but not limited to certain types of knives, crossbows, bombs/grenades, anti-personnel spray and silencers. the full list of prohibited weapons is set out in Schedule 1 of the Act.

What Actions Might Constitute Possess Prohibited Weapon?

For the purposes of this section you can be found to be in possession of the prohibited weapon if you knowingly do one of the following:-

• Have custody of the weapon, that is, if the weapon is on your person;
• Have the weapon in the custody of another person, for example, if you ask a friend to hold the weapon for you; or
• Have the weapon in or on any other premises, including vehicles, vessels and aircraft, whether that place belongs to you or not.

A prohibited weapon is any item listed in Schedule 1 of the Weapons Prohibition Act 1998.

There are two circumstances in which you could be charged with an offence under this section even if you have a permit to hold that prohibited weapon. Those are:-

• If you possess or use the prohibited weapon for any reason other than the ‘genuine reason’ listed on your permit for allowing you to have the weapon; or
• If you contravene any condition of the permit.

What the Police Must Prove:

To convict you of a possess prohibited weapon charge, the Police must prove, beyond reasonable doubt:

• That you possessed or used a prohibited weapon as defined in Schedule 1 of the Weapons Prohibition Act; and
• That the possession or use was without a permit;
• The possession or use was with a permit but in contravention of the permit or not in connection with the purpose established for being the genuine reason for possessing or using the weapon.

Possible Defences for Possess Prohibited Weapon:

Possible defences to a Possess Prohibited Weapon charge include but are not limited to:

• Necessity
• Duress
• Self defence
• You were lawfully authorised to possess the weapon (you have a permit)
• You are exempt from the requirement to hold a permit

Which Court Will Hear Your Matter?

This matter is a Table 2 offence. This means that the matter will likely be dealt with at the Local Court, however, the DPP can elect to have the matter dealt with in the District Court, which will give rise to harsher penalties.

Types of Penalties:

Jail: This is the most serious penalty and involves full time detention in a correctional facility. Read more.

Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive Corrections Order (ICO): This option has replaced periodic detention. the court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. a suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community Service Order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good Behaviour Bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. the court will impose conditions that you will have to obey during the term of the good behaviour bond. the maximum duration of a good behaviour bond is five years. Read more.

Community Corrections Orders (CCO): a CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.

Fines: When deciding the amount of a fine the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10A: a section 10A is a conviction, with no other penalty attached to it. Read more.

Conditional Release Order (CRO): a CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.

Section 10 avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.