With gun related violence in Victoria increasing, there has been a particular focus on amending laws surrounding firearms possession and trafficking. In Victoria, a person can only possess a firearm if they are not a prohibited person, they have a firearms licence, the firearm is registered and it is stored in a particular manner on their property. Accordingly, many of the offences that we see come through our office relate to possessing a firearm without a licence or failing to secure the firearm as required. The Firearms Act is the relevant legislation in relation to firearms offences. The maximum sentences for offences of using, possessing or carrying a firearm range from 2 years to 10 years, depending on whether the accused is a prohibited person, the nature of the conduct and the type of firearm.
In December 2015, the Victorian Parliament also amended the Firearms Act to introduce the offence of possessing a traffickable quantity of unregistered firearms, which mirrors existing trafficking provisions in relation to illicit drugs. Where a person has more that three unregistered firearms, they are presumed to be in possession of a traffickable quantity and therefore the sentence is higher than if they were charged in relation to each of the firearms individually.
The Firearms Act also interacts with the Crimes Act and Intervention Order legislation. Often when a crime is committed using a firearm, a person is charged with multiple offences under the different Acts of Parliament. Further, when an intervention order is obtained against a firearms licensee, he or she is required to surrender their firearms pursuant to the order and may only obtain their licence back should the Court so order.
New South Wales
Firearms offences are dealt with particularly seriously in New South Wales, where it is common place to receive a sentence of custodial imprisonment for a firearms offence, regardless of the plea.
In addition to the general firearms offences and the seriousness with which they are considered, New South Wales also has in place Firearm Prohibition Orders (FPO). Controversially, this is not an order made by a Court or Judicial Officer. It is an order that is made by the Commissioner of Police against a person who is deemed by the Commissioner as not being a fit person to have possession of a firearm. A person does not necessarily have to have been convicted of an offence or, in particular, to have been convicted of a firearms or violent offence in order for the Order to be made.
The powers that are extended to Police under these orders are exceptional and take effect from the moment a police officer serves a copy of the order personally on the person against whom it is made. The order thereafter allows the Police to detain a person subject to a FPO, search their home or any other premises under the control or management of the person (for example, their work place), and to stop and detain a person driving a vehicle in order to search it (a vehicle, being a vehicle, vessel or aircraft). The Police do not have to have any other grounds for the search, which in our experience has allowed them to randomly intercept vehicles containing individuals the subject of these orders in order to search their car, even though there was nothing about their conduct which gave them any other cause to intercept and search them. In fact, it does not even have to be a car owned or driven by the person the subject of the order for this power to be activated. Members of the Police force have also used the power to search homes in the absence of a warrant and without any indication that there was any other proper basis to conduct the search.
Because these orders take effect as soon as they are served, we have experienced situations where individuals are served at the doorstep of their home and then immediately searched, without any warrant or other explanation as to why their homes are being searched. As easily as the Commissioner may make the order, he or she can revoke it for any or no stated reason. As such, it is a convenient method by which Police may conduct searches, which would otherwise be constituted illegal, by serving and then potentially revoking the order under this unprecedented piece of legislation.
Shortly after the extension of these powers in 2013, the then Commissioner of Police, Andrew Scipione, told Nine News: ‘Police [have] the right to stop, to search, to enter premises to ensure that they don’t have a firearm, they haven’t got ammunition or parts of a firearm. All of that without warrant. Now they’re extraordinary powers’.
Thankfully, the power is subject to the supervision of the Ombudsman, who released a report in August 2016 critical of the use of these powers, which have been publicly touted by Senior Police as a deliberate strategy. This strategy and the sheer number of FPO’s which have recently been served has attracted criticism from defence lawyers and civil libertarians concerned about the use of this unfettered power. Firstly, out of the 2,500 searches conducted by Police pursuant to these powers between 2013 and 2015, only 2% of these searches actually located prohibited items. Further, it appears that the NSW Police have fundamentally misconstrued the extent of these powers and, according to the Ombudsman, ‘conducted those searches on what appears to be an erroneous application of the new FPO search powers and, as such, the searches may have been unlawful’. Most important is the safeguard built into the legislation that the search must be reasonably required. The Ombudsman found that the Police had been conducted searches on individuals purely because they were subject to the Order, but without any other basis for the search, which approach was incorrect.
There are, however, review powers in place under the Act and we encourage any person, immediately after being served with an Order, to seek legal advice in relation to the available avenues for review and revocation of the Order.
If a person does not successfully apply for a review of an order, and thus accedes to the order itself, there are significant penalties for breaches of the order. A person the subject of an order who acquires or possesses a firearm, firearm part or ammunition, is liable to a penalty of between 5 and 14 years. There are also more oblique offences, including an offence of residing at premises where a prohibited item is located. The onus then shifts to the defendant to prove that they did not know or could not reasonably be expected to have known that the prohibited item was there. This reverses the usual burden imposed on the Police and Prosecution to prove their case against the defendant, without the defendant having to prove their innocence or mount an affirmative defence.
However, our office does have experience in successfully defending charges contrary to firearms prohibitions orders. In July 2017, we represented a gentleman who was charged with possession of ammunition contrary to his Firearms Prohibition Order. This person had in fact never been convicted or found guilty of a firearms offence, but was served with an order regardless. He was subsequently searched frequently over a 12 month period, pursuant to the order and for no other discernible reason. His house was searched on an occasion and ammunition was found. The house was the home of other family members and our client denied knowledge of the ammunition, which was found in a common area. He challenged the charges in Court, including a charge of residing in premises where ammunition was found, and was found not guilty on all charges.
Firearms offences are being dealt with seriously by the Courts, given the increase in gun related crime. If you or someone you know is charged with a firearms offence (particularly if they have prior convictions or have other charges pending) or served with a Firearms Prohibition Order in New South Wales you should contact an experienced criminal lawyer immediately to obtain legal advice.