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Thursday, 12 April 2012

Imitation firearms

The Control of Weapons and Firearms Acts Amendment Bill 2011 passed Parliament last month. It received Assent on 20/3/12. It will take effect on the 1st October 2012, unless proclaimed earlier.

Its Explanatory Memorandum is here. The Second Reading is here.

The Bill describes a new indictable offence in the Control of Weapons Act 1990 prohibiting prohibited persons from possessing, carrying or using imitation firearms, whether or not the firearm is registered. The maximum penalty for this offence will be 1200 penalty units or 10 years imprisonment: s 5AB(2). This is a higher maximum penalty than was previously available, but not the 1800 penalty units or 15 years imprisonment that applied when an imitation firearm was still considered to be a firearm under s 5(1A) of the Firearms Act.

New section 5AA makes it an offence for a person to possess, use or carry a prohibited weapon, other than an imitation firearm, without an exemption or approval. The maximum penalty remains 240 penalty units or 2 years imprisonment. This offence is similar to the existing section 5(1)(e), which is being repealed, but excludes imitation firearms.

New section 5AB creates separate offences relating to the possession, use or carriage of imitation firearms. New section 5AB(1) makes it an offence for a non-prohibited person to possess, use or carry an imitation firearm without an exemption or approval. The maximum penalty remains 240 penalty units or 2 years imprisonment. The offence only applies to nonprohibited persons due to the creation of a separate indictable offence for prohibited persons in new s 5AB(2) Fireams Act 1996.

Crimes Act offences

More than a year ago I pointed out the changes to the Firearms Act 1996 and Control of Weapons Act 1990 that made possession of a replica firearm no longer subject to the same penalties as possession of the real thing.

That post, about the Firearms and Other Amendments Act 2010, is here. The amendments took effect from 1st July 2011.



I should have mentioned that these changes don't have any impact on the firearms offences contained in the Crimes Act 1958.

For example, section 31A of the Crimes Act reads,

31A. Use of firearms in the commission of offences


(1) A person who is found guilty of an indictable offence and who carried-

(a) a firearm (within the meaning of the Firearms Act 1996); or

(b) an imitation firearm (within the meaning of section 29(3)(b))-


when committing the offence is guilty of a further offence and is liable to
level 6 imprisonment (5 years maximum).

(2) Despite anything to the contrary in the Sentencing Act 1991 or in any
other law, a court, in imposing a penalty under subsection (1)-

(a) must direct that the sentence not be served concurrently with any other sentence; and

(b) must not make an order suspending the whole or any part of the sentence.


Importantly, the definition of firearm under (1)(a) is drawn from the Firearms Act, the definition of imitation firearm isn't. Instead, that definition comes from s 29 of the Crimes Act (creating an offence for using a firearm for resisting arrest) and reads (in part),

(3) In this section-

(a) firearm has the same meaning as in the Firearms Act 1996; and

(b) imitation firearm means anything which has the appearance of being a firearm whether or not it is capable of discharging any shot or other missile.


This definition was not altered by the enactment of the Firearms and Other Amendments Act 2010, or the Control of Weapons and Firearms Acts Amendment Act 2011.

Offences under ss 29, 31A and 31B are triable summarily, but only barely. They carry maximum penalties of Level 5 and 6 imprisonment, respectively.

Offences of aggravated burglary and armed robbery also rely upon this Crimes Act definition. Of these two, only the former can be dealt with summarily, and only then if it involves an intention to steal an amount less than $100,000.

The 2010 amendments endorse a more lenient approach to the possession of an imitation firearm when that is the only charge before the court. But when a replica firearm was used in connection with another offence, the penalties remain severe.

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