It is an offence to possess, carry or use a loaded firearm in public under section 130 of the Firearms Act 1996 (Vic).
A charge under this section is serious in nature and will likely warrant a conviction. There are many different situations in which this offence can occur. The circumstances that give rise to it may have been overlooked after undertaking lawful activity earlier in the day. Magistrates treat firearms charges very seriously.
Whether you should contest or plead guilty to this charge depends on many factors that can best be decided after a conference with a criminal lawyer.
Examples of Possess, Carry or Use a Loaded Firearm in Certain Places
- A person carries a concealed, loaded pistol through a crowded shopping mall.
- A person leaves a loaded shotgun mounted to the exterior of their car after hunting rabbits earlier in the day and then attends a petrol station to refuel their car.
- A person who lives in a densely populated area shoots tin cans with an air rifle in their backyard.
Questions in cases like this
- Was the firearm loaded?
- Was the person in possession of a firearm?
- Was the person in possession of a firearm in a prohibited place?
What are some of the possible defences to Possess, Carry or Use a Loaded Firearm in Certain Places?
Some possible defences to this charge include:
- The firearm was not loaded
- The person was not in possession of a firearm
- The person was a police officer acting in accordance with their duties
- The person had a relevant gaming license that permitted them to have a loaded firearm and they were using the firearm in accordance with their license
Maximum penalty and Court that deals with this charge
Possessing, carrying or using a firearm in a certain place carries a maximum penalty of 10 years imprisonment. The sentence received depends on the circumstances of a particular case.
This offence is heard in the Magistrates’ Court.
This offence is governed by section 130 of the Firearms Act 1996 (Vic).
Elements: When can a person be found guilty of this offence?
For a person to be found guilty of this office, the prosecution must prove that:
- The accused possessed a loaded firearm; or
- The accused carried a loaded firearm; or
- The accused used a firearm; and
- Did so in a public place, or any place with reckless disregard for the safety of any person; and
- An exception to the offence does not apply.
Elements 1, 2 and 3 are alternatives. This means that the prosecution only needs to prove one of these elements for a person to be captured by the offence. For example, a person might possess a firearm without carrying or using it, and the offence will still apply.
A person will be guilty of the offence if either element 1, 2 or 3 are made out, and element 4 is made out, and an exception under element 5 does not apply.
Element 1: The accused possesses a loaded firearm
A person will satisfy element 1 of the offence if they possess a loaded firearm.
A person ‘possesses’ a firearm when they have actual physical possession of the firearm, custody or control of the firearm, or access to the firearm (this includes sole access or shared access with other people).
A ‘firearm’ is a device, either assembled or in parts, which is designed or adapted, or is capable of being modified, to discharge shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means. The device may be temporarily or permanently inoperable or incomplete and still be classified as a firearm.
There are some explicit exceptions in the Firearms Act 1996 (Vic) for devices which meet the definition of firearm which are nevertheless deemed not to be firearms. These devices include industrial tools intended for fixing fasteners or plugs, a captive humane bolt killer, an underwater spear gun, a signal flare gun, a kiln gun or ringblaster, or a line thrower.
A firearm is ‘loaded’ when it has cartridge ammunition in its chamber or barrel, or fitted with a magazine that is loaded with cartridge ammunition which can be fitted to the chamber or barrel of the firearm by operating another part of the firearm.
Element 2: The accused carries a loaded firearm
A person will satisfy element 2 of the offence if they carry a loaded firearm.
A person ‘carries’ a firearm if they have carriage of a firearm either as a whole or in parts.
‘Firearm’ and ‘loaded’ have the same meaning as in element 1 above.
Element 3: The accused uses a firearm
A person will satisfy element 3 of the offence if they use a firearm.
‘Use’ is not defined it the Firearms Act 1996 (Vic). A person uses a firearm when they operate it according to its ordinary purpose, namely firing bullets or other missiles.
‘Firearm’ has the same meaning as in element 1 above. It is assumed that if a person uses a firearm, the firearm is loaded.
Element 4: The accused possesses, carries or uses a firearm in a public place, or in any place with reckless disregard for the safety of any person
A person will satisfy element 4 of the offence if they possess, carry or use a loaded firearm in a public place, or any place with reckless disregard for the safety of any person.
‘Public place’ means:
- any public highway, road, street, bridge, footway, footpath, court, alley, passage, or thoroughfare notwithstanding that it may be formed on private property;
- any park garden reserve or other place of public recreation or resort;
- any railway station platform or carriage;
- any wharf pier or jetty;
- any passenger ship or boat plying for hire;
- any public vehicle for hire;
- any church or chapel open to the public or any other building where divine service is being publicly held;
- any government school or the land or premises in connection to a government school;
- any public hall theatre or room while members of the public are in attendance, or are assembling for or departing from a public entertainment or meeting;
- any market;
- any auction room or mart or place while a sale by auction is there proceeding;
- any licensed premises or authorised premises within the meaning of the Liquor Control Reform Act 1998;
- any race-course cricket ground football ground or other such place while members of the public are present or are permitted to have access to whether with or without payment for admission;
- any place of public resort; or
- any open place to which the public whether upon or without payment for admittance have or are permitted to have access.
The interior or exterior of any vehicle that is in a public place is deemed to be a public place.
Element 4 of the offence also applies to places where the person possessing, carrying or using the loaded firearm has reckless disregard for another person’s safety. An example of this could be a person shooting kangaroos on their private rural property close to a highway where members of the public are driving.
Element 5: An exception does not apply
If any of the following exceptions apply, the prosecution will be unable to prove that a person is guilty of this offence:
- The person was a police officer or protective services officer (PSO) acting in accordance with their duties; or
- The person was a senior IBAC officer carrying out the purposes for which firearms may be possessed, carried or used, and as authorised under part 5 of the Independent Broad-based Anti Corruption Commission Act 2011; or
- The person was a member of the police force or police service of the Commonwealth or another state or territory acting in accordance with their duties; or
- The person is a prison guard authorised to carry or use a firearm acting in accordance with their duties as a prison guard and who is in the immediate pursuit of another person under the person who is the guard’s custody; or
- A person who holds a licence under this Act, and who is possessing, carrying or using a firearm which the person is authorised to possess, carry or use under the licence and who is acting in the course of the person’s duties under any relevant law within the meaning of the Conservation, Forests and Lands Act 1987 or under the Livestock Disease Control Act 1994 or the Prevention of Cruelty to Animals Act 1986; or
- a person who holds a licence under this Act, and who is possessing, carrying or using a firearm which the person is authorised to possess, carry or use in accordance with the licence and who is acting under a game licence under the Wildlife Act 1975; or
- a person who holds a licence under this Act, and who is possessing, carrying or using a firearm in accordance with the licence and with any other requirements of any other law, licence, permit or other authority that applies to the possession, carriage or use; or
- a person who carries or uses a firearm with the written permission of the Chief Commissioner.
The ‘Chief Commissioner’ is the Chief Commissioner of police appointed under the Victoria Police Act 2013. The Chief Commissioner must not grant a person permission to possess, carry or use a firearm unless the possession, carriage or use is consistent with the reasons for which the licence was issued; or there is significant public benefit to be obtained from the carriage or use of the firearm, or the carriage or use of the firearm is for the purposes of public safety.
Any permit to possess, carry or use a firearm granted by the Chief Commissioner may have conditions imposed on it and continues in force for the period specified in the permit.
Sentencing in the Magistrates’ Court
A total of 103 cases (108 charges) of Carry a Loaded Firearm in a Town, Populous Place, or Public Thoroughfare/Place were heard in the Magistrates’ Courts of Victoria from 1 July 2013 to 30 June 2016. The majority of these cases resulted in an imprisonment (30.1%) whilst Youth Justice Centre Order was the least imposed sentence (1.0%).
Other sentences handed down were: fine (26.2%), adjourned undertaking/discharge/dismissal (25.2%), Community Correction Order (11.7%), wholly suspended sentence (3.9%), and partially suspended sentence (1.9%).
Of the prison terms imposed, the longest period was between 18 and 24 months (6.5%), although the majority of people sentenced to prison received a sentence of 6 to 12 months (35.5%).
Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.
Contact a lawyer if you have been charged with a criminal offence. Possess, Carry or Use a Loaded Firearm in Certain Places is a serious charge that can land you behind bars on a finding of guilt. Speak with an accredited criminal law specialist from Doogue + George Defence Lawyers and find out your best course of action.
For more information about this offence, visit this page where this article was originally published: https://www.criminal-lawyers.com.au/offences/carry-a-loaded-firearm.