Possess or Use Prohibited Weapon

The offence of ‘Possess or Use Prohibited Weapon’ is contained at Section 7 of the Weapons Prohibition Act 1998. The maximum penalty for the offence is 14 years imprisonment and carries a 5-year standard non-parole period. 

The principles of the Weapons Prohibition Act 1998 (“The Act”) aim to uphold that possession and use of prohibited weapons are a privilege that is conditional on the authorized and proper use of those items while balancing the use of prohibited weapons with the overriding need to ensure public safety. The Act’s objectives are to require each person who holds a prohibited weapon to do so under authority of a permit, have a genuine reason for possessing that item and provide strict requirements for a person to be able to use and possess prohibited weapons. 

What is the Offence of Possess or Use Prohibited Weapon?

Section 7 of the Weapons Prohibition Act 1998 makes it an offence for a person to possess or use a prohibited weapon without authorization of a permit, or to possess or use a permitted weapon in contravention of the permit or for any purpose other than the purpose established by the permit. 

The Act provides a full list of all prohibited weapons under Schedule 1. Some examples of the prohibited weapons listed in the Schedule are:

1. Knives – Flick knives, ballistic knives, sheath knives, trench knives, butterfly knives and star knives. 
2. Military Style weapons – Bombs, grenades, rockets, missiles or mines, or other similar devices that expels or contains explosive, incendiary, irritant gas or smoke, whether or not the weapon is live, deactivated or spent. 
3. Miscellaneous Weapons – spear guns with length of less than 45cms when unloaded, crossbows, slingshots, blowgun or blow pipe, mace, whip, taser gun, knuckle dusters, devices designed or intended as self-defence spray. 
4. Miscellaneous Articles – Body Armour vests designed for anti-ballistic purposes, handcuffs, silencers, detachable firearm magazine, tyre deflation device, laser pointer. 
5. Imitations or Concealed Blades – walking stick or cane that conceals a sword or blade, riding crop that contains a knife, blade or spike, any object that substantially duplicates in appearance a weapon specified in Schedule 1 Clause 1A but not including an object that is produced and identified as a children’s toy. 

The following acts constitute Possessing or Using a Prohibited Weapon:

• Possessing and/or using a self-defence spray or a self-defence key chain,
• Using a spear gun to intimidate or threaten a person, even if the person has a permit for the spear-gun,
• Wearing knuckle dusters, whether at home or in public,
• Possessing a flick knife that has a plastic blade, 
• Owning a pair of handcuffs, even if for personal or sexual use. 

What Must Be Proven?

For a person to be found guilty of Possess or Using a Prohibited Weapon the Prosecution must prove each of the following matters beyond a 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; or
• 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.

Definitions:

The Weapons Prohibition Act 1998 defines “possession” to include any case in which a person knowingly has custody of the weapon, or has the weapon in custody of another person, or has the weapon in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person. 

The Act also defines “use” include causing a reasonable belief that the weapon will be used. 

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

This offence is a Table 2 offence, which means that it will be dealt with in the Local Court unless the Prosecution elects to have the matter dealt with in the District Court.

Possible Defences to Possessing or Using a Prohibited Weapon:

The following defences may be available:

• You hold a permit that authorises possession and/or use of the prohibited weapon and possessed / used the prohibited weapon in accordance with the conditions of the permit, 
• The item is not listed as a prohibited weapon in Schedule 1 of the Act, 
• The item is an object that is produced and identified as a children’s toy (for example, a water-pistol or an imitation cowboy pistol),
• That you did not “possess” or “use” the prohibited weapon,

Common Questions

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely. 

In NSW, a Court can impose any of the following penalties for a Possessing or Using a Prohibited Weapon charge.

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for Possessing or Using a Prohibited Weapon might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of violence can completely rule out certain career paths such as teaching and a range of government employment options. Violent offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol?

Whether a person will go to Gaol for the offence of Possessing or Using a Prohibited Weapon depends very much on the circumstances of their individual matter. It may also depend on whether the charge is finalized in the Local or the District Court, with the District Court having a longer Gaol term available as a sentencing option (up to 14 years) compared to the Local Court (up to 2 years in the case of one sequence or 3 years in the case of multiple offences). For example, someone who uses a prohibited weapon in the commission of an offence with a record of prior violent offending would be treated more harshly on sentence than a person who possessed a prohibited weapon with a recently expired permit with no criminal history. 

How does the standard non-parole period apply?

This offence has an applicable standard non-parole period of 5 years. Standard non-parole periods are legislative guideposts that are set by Parliament to indicate the seriousness of an offence and are required to be taken into account by the sentencing Magistrate or Judge when determining the appropriate sentence for the offence. A standard non-parole period does not mean a person will automatically be sentenced to 5 years imprisonment for any and every use/Possess Prohibited Weapon charge, but it is an important sentencing factor that will be considered and weighed against the objective seriousness of the offence, the offender’s moral culpability and the offender’s subjective circumstances.   

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.