Possession, supply or making of explosives

In NSW it is an offence to possess, supply or make an explosive.

A person can be charged with this offence if they are in possession of an explosive in a public place. the maximum penalty for the offence is 5 years imprisonment.

A person can also be charged with a lesser offence if they possess, supply or make an explosive. They can be charged with this offence whether or not they are in a public place. the maximum penalty for this offence is 3 years imprisonment.

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 Possess, Supply or Make Explosive

The offence of Possess, Supply or Make Explosive is contained in section 93FA of the Crimes Act 1900 and states:

• A person who possesses an explosive in a public place is guilty of an offence.
  • Maximum penalty: Imprisonment for 5 years.
• A person who possesses, supplies or makes an explosive, under circumstances that give rise to a reasonable suspicion that the person did not possess, supply or make the explosive for a lawful purpose, is guilty of an offence.
  • Maximum penalty: Imprisonment for 3 years or 50 penalty units, or both.

What Actions Might Constitute the Offence of Possess, Supply or Make Explosive

Examples of Possess, Supply or Make Explosive include:

• Mixing aluminium nitrate and fuel oil to film you and your friends blowing something up;
• Carrying a stick of dynamite to the park in your backpack; or
• Purchasing an explosive online for your friend in exchange for $20.

What The Police Must Prove

To convict you of Possess, Supply or Make Explosive the prosecution must prove each of the following matters beyond reasonable doubt:

• That you were either:
  • in possession of an explosive and in a public place; or
  • That you made, supplied or possessed an explosive.

Possible Defences for Possess, Supply or Make Explosive

The common ways to defend this charge are:

• To maintain your innocence if you did not commit the act;
• To argue that you were not ‘in possession’ of the explosive or that you were not in a public place;
• To argue that you did not make, supply or possess an explosive;
• To argue that you had a reasonable excuse for possessing the explosive;
• To argue that you were in possession of the dangerous article for a lawful purpose; or
• To raise necessity or duress as the reason for your conduct.

Which Court Will Hear Your Matter?

The charge is a table two offence which means that the matter will be finalised in the Local Court unless the Director of Public Prosecutions elects to have the matter finalised in the District Court.

If the matter is finalised in the Local Court the court can only impose a maximum penalty of two years imprisonment.

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.