Trespassing With or Dangerous Use of Firearms/Spear Gun

In NSW it is an offence to possess a firearm or spear gun and enter a building or land without a reasonable excuse or lawful purpose. It is still an offence even if the firearm or spear gun is a replica. This offence is known as Trespass with Firearms.

A person can be charged with this offence if they are trespassing on any land or in any building with a real or replica firearm or spear gun in their possession. the maximum penalty for the offence is 5 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 Trespass with Firearms:

The offence of Trespass with or Dangerous Use of Firearms is contained in section 93H(1) of the Crimes Act 1900 and states:

• A person who, possessing a firearm, imitation firearm, spear gun or imitation spear gun, enters any building or land (other than a road), unless the person:
  • is the owner or occupier of the building or land or has the permission of the owner or occupier, or
  • does so with a reasonable excuse, or
  • does so for a lawful purpose,

is liable to imprisonment for 5 years.

What Actions Might Constitute the Offence of Trespass with Firearm?

Examples of Trespass With Firearm include:

• Entering a building site with a gun;
• Climbing under your neighbours fence and walking across a paddock with a rifle to go hunting even though your neighbours told you they don’t want you hunting on their property;
• Leaving a spear gun in your car for weeks after going spear fishing and going to watch a drive in movie; or
• Walking through a shopping mall with a replica pistol stowed in the front of your pants.

What the Police Must Prove:

To convict you of Trespass With Firearm the prosecution must prove each of the following matters beyond reasonable doubt:

• That you were in possession of a firearm, spear gun, replica firearm or replica spear gun; and
• That you entered a building or land.

Possible Defences for Trespass with Firearm

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 firearm, spear gun, replica firearm or replica spear gun;
• To argue that you were the owner or occupier of the land or building;
• To argue that you had the permission of the owner or occupier of the land or building;
• To argue that you had a reasonable excuse for possessing the firearm, spear gun, replica firearm or replica spear gun;
• To argue that you were in possession of the firearm, spear gun, replica firearm or replica spear gun 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.