In this case study, we discuss a recent outcome involving a client charged with possession of firearm whilst being a prohibited person.
Table of Contents
Background
Our client was the respondent to a Final Family Violence Intervention Order that was issued by the Warrnambool Magistrates Court in March 2020.
As a result of this Order our client was a 'prohibited person', and consequently could not possess or own a firearm for 5 years.
As part of a separate investigation in January 2024, the police received information that our client had a firearm in his possession.
Our client was questioned in relation to a family violence allegation, and during that interview the complaint that he possessed a firearm was raised by the police.
Pursuant to section 159 of the Family Violence Protection Act 2008 (Vic) the police attended his residence to conduct a search.
As a result of the search, police located in our client's laundry six firearm butts, two firearm forearms were found in firearm storage bags. In addition to this three fireman magazines were found in a blue and black carry bag.
Additionally, our client was interviewed as to whether another item found amounted to an imitation firearm. He was subsequently not charged with possession of an imitation firearm.
Charged After Interview
Our client was charged under section 5(1) of the Firearms Act 1996 (Vic) (The Act) of being a prohibited person in possession of a firearm.
Maximum penalty for Prohibited Person Possess Firearm
The offence is indictable and carries a maximum penalty of 600 penalty units or 7 years imprisonment.
Elements of the charge - what the prosecution have to prove
in laying this charge against our client, the prosecution were required to prove our client was:
a. prohibited person
b. possessed a firearm
No issue arose as to whether our client was a prohibited possession or whether he relevantly possessed the items found by the police. .
Issues arising from the prosecution case
During negotiations with the prosecution the issue of whether the items found by the prosecution met the legal definition of firearm means:
any device, whether or not assembled or in parts—
(a) 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; and
(b) whether or not operable or complete or temporarily or permanently inoperable or incomplete—
and which is not—
(c) an industrial tool powered by cartridges containing gunpowder or compressed air or other gases which is designed and intended for use for fixing fasteners or plugs or for similar purposes; or
(d) a captive bolt humane killer; or
(e) a spear gun designed for underwater use; or
(f) a device designed for the discharge of signal flares; or
How the Case Resolved
The case was poised to proceed to a contest mention on the basis of the issue outlined above, however, our client wanted to finalise his case as soon as possible and instructed our office to seek a diversion.
A detailed diversion submission was prepared and sent to the prosecution for their consideration.
Relevant to our application was that the items found at his residence had been lying idle for several years and were not collected by the police at the time when he was declared a prohibited person and was required to surrender his firearms.
It was also relevant that the firearm parts found at his residence could not be assembled to make any device resembling a firearm.
Further, our client had no criminal history, and had strong ties to his local community through running several successful businesses, and had been cooperative with police when interviewed.
Court Outcome
After hearing submissions, the presiding Magistrate granted diversion which required our client to be of good behaviour, and to make a $500 donation.
