Firearms & Weapons Offences

Have you been charged with a weapons offence?

Perhaps more than any other type of offending, that involving firearms is treated vastly differently between Queensland and New South Wales.

If you’ve been charged, contact Michael McMillan today on (07) 5619 6860 or 0409 273 430 for legal advice and representation.

Firearms & Weapons Offences in NSW and QLD

In Queensland, there is no direct reference in the Criminal Code (which is the primary criminal law) to offending involving firearms.

That task is left to the Weapons Act. That criminalizes possession of possession of all sorts of weapons, including firearms.

It doesn’t, though, contain the same teeth as its New South Wales counterpart.

For example, in Queensland if a person is convicted of possessing an unregistered firearm can only be fined.

There is now prison time attached to that offence.  But the equivalent in New South Wales will see the same person ordinarily facing a maximum of 5 years imprisonment, which can jump to 14 years if the weapon is a pistol.

In contrast to the Queensland Criminal code, the New South Wales Crimes Act, contains a number of direct references to offences concerning firearms. Two very serious examples are:

  • Discharging Firearm with Intent to Cause Grievous Bodily Harm and;
  • Possession of an Unregistered Firearm in a Public Place.

The former of these is considered serious enough to carry upon conviction a standard non parole period of 9 years.  But the vast bulk of criminal conduct involving firearms is found in the Firearms Act.  Completely unlike the Queensland law which, at its highest imposes a mandatory minimum of 5 years imprisonment for unlawfully trafficking in firearm, the Firearms Act contains three offences (unauthorized selling of firearms and unlawful possession more than 3 firearms any one of which is a pistol) which see a person convicted of them facing a standard non parole period of 10 years.

And again, on the vexed question of how to classify replica or imitation firearms, the laws of New South Wales and Queensland are completely at odds with each other.  In Queensland they are not classified as firearms but rather “restricted items” prohibit the possession of imitation or replica firearms.  Possessing them will only see a person risk a small fine.  In New South Wales, however, they are considered the same as firearms and a conviction for possessing them carries a standard non parole period of 4 years.

A final example, (although there are many more) is that unlike Queensland, the law in New South Wales permits police to issue a notice to its citizens prohibiting them from possessing a firearm or part of one.  There is no strict criteria that the police must consider before issuing it.   Just having a criminal history (even one unrelated to weapons offences) can be enough for them to consider that it is not in the public interest for that citizen to have access to firearms.

Alarmingly, once it is served it allows the police to conduct random compliance searches of that citizen and any place he or she occupies.  So it operates like a search warrant, except unlike a search warrant it doesn’t require there to be any objective evidence in order to bring it into existence.

In the case of Fahma v Director of Public Prosecutions (NSW) [2021] NSWDC 329 just such notice was served on a homeowner and at that exact time the police then decided to search his home.  In doing so they found ammunition.  He was charged with possession and was convicted.  On appeal he argued that he should have been given time to comply with the notice before the police were allowed to conduct a ‘compliance search’.  The court disagreed stating that the law:

“..does not impose any requirement on a police officer to give a person who has been served with a firearms prohibition notice a reasonable opportunity to remove, for example, ammunition from his residential premises.”

Given the far less severe way in which firearm offending is apparently viewed by Queensland’s parliament, an interesting feature of the law in that State is that in certain circumstances the law seeking to attribute possession of a firearm to a person even though that may in fact not be the case.  Section 163 of the Weapons Act, in effect, states that it is enough proof for conviction if when the firearm was located it was in a place of which the person charged was the occupier of concerned in its management.  So basically, the only way around this attribution of guilt is for that person to then forego his or her right to silence and give evidence rebutting that presumption.  At first glance, this unusual role reversal appears to impose much greater obligations on an accused than many other types of alleged offending.  And while it may do that, the counterbalance to that is that the punishments for being convicted of being deemed to unlawfully possess a firearm are substantially lower than if an accused actually possessed one.

A recent example of how that works is found in the case of R v Atasoy [2023] QCA 121 where the accused was deemed to have unlawfully possessed firearms found in a utility the keys for which were found in his kitchen.  There was no evidence he actually knew they were there.  In discussing how the accused should have been dealt with at sentence, the court recognized that his liability to be punished really lay with the accused not taking proper steps to ensure the lawfulness of the contents of the utility, rather than have care and control over the firearms.

It’s not uncommon for someone accused of possessing firearms that they do not have a lawful clearance to possess to still want to keep them after the proceedings for the offending are done.  Upon conviction for an offence against the Weapons Act (Qld) the court may order that the weapon referred to in the charge be forfeited to the State.  What is not well known amongst lawyers is that such a result is not inevitable.  A carefully delivered argument of the sort found in the case of Fraser v The Commissioner of Police [2017] QDC 116 is a good guideline for how this can be accomplished.

These are simply a handful of matters which provide an interesting look at the hugely complex area of firearms offences.  I have had more than 2 decades of experience in obtaining successful results for clients charged with them and am only to willing to assist you the same way.


Contact Michael for Legal Advice

If you’ve found yourself facing an alleged firearms or weapons charge, contact Michael McMillan today on (07) 5619 6860 or 0409 273 430 for legal advice and representation.