In this article, we discuss the law in Victoria as it relates to possession, and use of an imitation firearm.
Table of Contents
The Law
Whereas the prosecution of firearm offences is governed by the Firearms Act 1966 (Vic), the Control of Weapons Act 1990 (Vic) (the Act) is the relevant legislation for other objects the law characterises as weapons in Victoria.
Section 5AB of the Act creates the prohibition of possessing, using or carrying an imitation firearm.
What the Prosecution Must Prove
Section 5AB provides that a non-prohibited person must not:
possess an imitation firearm;
use an imitation firearm;
carry an imitation firearm
Key Definitions
Under section 3 of the Act,
"possession" includes:
a) actual physical possession; and
b) custody or control; and
c) having and exercising access either solely or in common with others;
"imitation firearm" includes:
a) the appearance of which could reasonably be mistaken for that of an operable firearm; but
b) which is not designed or adapted 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 is not capable of being made to do so;
Reasonable person test
Whether a particular device could be mistaken by a reasonable person as a working firearm will turn on its appearance, and the extent to which it can be discerned as a toy. Victoria Police have provided some guidance on this issue, refer to a Quick Guide to Toy, Imitation, and Other Firearm Paraphernalia publication.
It is also important to note that replica firearms are classified by the police as "working copies of an original firearm and anyone in possession of a replica must register it and be the holder of the appropriate firearms licence".
Penalties
The maximum penalty under section 5AB is 240 penalty units or 2 years imprisonment. If a prohibited person commits the same offence under section 5AB, the maximum penality is 1200 penalty units of 10 years imprisonment.
Sentencing Outcomes
An offence under section 5AB of the Control of Weapons Act is prosecuted in the Magistrates' Court. As a general guide to sentencing outcomes for this offence the Sentencing Advisory Council has published data for the period 30 June 2019 - 30 June 2021.
The sentencing statistics for this offence for the period captured by the SAC reveals that most outcomes did not result in a term of imprisonment.
Defences
Defences to this offence may include:
factual dispute as to whether the subject item was possessed, carried or used
A reasonable person would not mistake the item as a working firearm.
If you intend to secure representation for an offence of possessing an imitation firearm contact us.
