Who is in charge of the Sentencing for Firearm Offences in Victoria?
The Firearms Act 1996 (Vic) is the main piece of legislation in regard to firearm offences in Victoria. However, other firearm related offences can be found under the Crimes Act 1958 (Vic).
Generally, the charges that the police lay in firearm matters depends on:
- The category of firearm involved; and
- The licence held by the accused (or lack thereof).
Less serious firearm charges are known as summary offences. These types of offences are dealt with in the Magistrates Court and can carry a maximum penalty of up to 2 years imprisonment. Serious indictable offences are heard in the County Court and carry a maximum penalty of more than 2 years imprisonment.
If you have been charged or are under investigation for a firearm offence, please contact Sher Criminal Lawyers immediately. Our team of criminal defence experts specialises in firearm matters and is here to help you. We have years of experience advising and representing clients before the Magistrates’ and County Courts of Victoria. Our lawyers are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.
Firearm Categories
Many offences under the Firearms Act 1996 (Vic) require that certain penalties be imposed in relation to different categories of firearm. There are five categories of longarms and two categories of handguns. Generally, the higher the category of firearm involved in the offence, the more severe the penalty.
The five categories of longarms in Victoria include:
Category A Longarm
- Airguns;
- A rimfire rifle (other than a semi-automatic rimfire rifle);
- A shotgun (other than a lever-action, pump-action or semi-automatic shotgun);
- Any combination of a shotgun and rimfire rifle.
Category B Longarm
- Muzzleloading firearms
- A centre fire rifle (other than an automatic or a semi-automatic centre fire rifle);
- Any combination of a shotgun and centre fire rifle;
- A black powder, ball firing cannon;
- A lever-action shotgun with a magazine capacity of no more than 5 rounds.
Category C Longarm
- A semi-automatic rimfire rifle with a magazine capacity of no more than 10 rounds;
- A semi-automatic shotgun with a magazine capacity of no more than 5 rounds;
- A pump-action shotgun with a magazine capacity of no more than 5 rounds;
- A tranquilliser gun.
Category D Longarm
- A semi-automatic rimfire rifle with a magazine capacity of more than 10 rounds;
- A semi-automatic shotgun with a magazine capacity of more than 5 rounds;
- A lever-action shotgun with a magazine capacity of more than 5 rounds;
- A pump-action shotgun with a magazine capacity of more than 5 rounds;
- A semi-automatic centre fire rifle;
- Any other firearm declared to be Category D by the Chief Commissioner.
Category E Longarm
- A machine gun that is a longarm;
- A tear gas gun or projector;
- A shotgun or rifle with a length of less than 75 centimetres measured parallel to the barrel;
- A mortar, bazooka, rocket-propelled grenade or similar large calibre military firearm designed to fire an explosive or projectile or any other similar prescribed firearm;
- A cannon which is not a black powder ball firing cannon;
- Any other firearm declared to be Category E by the Chief Commissioner.
The two categories of handguns in Victoria include:
General category handgun
- Any handgun that is not a category E handgun.
Category E handgun
- A machine gun that is a handgun;
- Any other firearm declared to be Category E by the Chief Commissioner.
Firearm Licenses
Under the Firearms Act 1996 (Vic), a person in Victoria can only possess, carry or use a firearm if they:
- Hold an appropriate license; and
- Use the firearm for the reason specified in the licence.
The licence that is required possess, carry or use a particular firearm will depend on the category of that firearm. As such, when a person applies for a firearm licence, they must stipulate whether that licence is for:
- A category A, B, C, D or E longarm;
- A general category or E category handgun;
- A paintball marker;
- A collectors firearm or ammunition;
- An antique collectors firearm;
- A heirloom firearm.
If a person wishes to undertake the business of dealing in firearms and related items, they must apply for a dealer’s licence.
Some firearm offences may only pertain to certain licence holders. For example, certain offences under the Firearms Act 1996 (Vic) only apply to people with a collector’s licence or a dealer’s licence.
Summary Firearm Offences
Summary firearm offences can carry a maximum penalty of 2 years imprisonment and are dealt with in the Magistrates Court of Victoria. The Firearms Act 1996 (Vic) notes numerous summary offences in relation to firearms.
Summary firearm offences under the Act include:
- Unlawfully or incorrectly storing firearms or ammunition (s121-123);
- Possessing cartridge ammunition without an appropriate licence (s124)
- Failing to safekeep firearms or ammunition while being carried or used (s126);
- Using a firearm in a dangerous manner (s129);
- A non-prohibited person without a licence possessing, carrying or using a longarm (s6) or a handgun (s7); and
- Possessing, carrying or using an unregistered longarm (s6A) or handgun (s7B).
The majority of summary firearm offences pertain to:
- Ammunition;
- Category A, B, C and D longarms; and
- General category handguns.
The specific penalty for each summary offence is stipulated in the relevant legislation. Some offences require that if the accused has been previously convicted in the past for the same crime, they are liable to more severe punishment.
There are many factors that the Magistrates Court must consider when determining the outcome and sentencing of a summary firearm matter. All relevant evidence and circumstances must be taken into account. Further, if the prosecution fails to prove any element beyond a reasonable doubt, the accused cannot be held criminally liable for that charge.
Indictable Firearm Offences
Indictable firearm charges are heard in the County Court and carry a maximum penalty or sentencing of more than 2 years imprisonment. However, in certain circumstances, the accused may be able to have these charges heard summarily in the Magistrates Court of Victoria.
Numerous indictable firearm charges can be found in the Firearms Act 1996 (Vic), including:
- A prohibited person possessing, carrying or using a firearm (s5);
- Possessing, carrying or using an unregistered longarm (s6A) or handgun (s7B).
- A non-prohibited person without a licence possessing, carrying or using a longarm (s6) or a handgun (s7); and
- Possession of a traffickable quantity of unregistered firearms (s7C);
- Unlawfully or incorrectly storing firearms or ammunition (s121-123);
- Failing to safekeep firearms or ammunition while being carried or used (s126);
- Unlicenced person storing a firearm in an insecure manner (s129A).
The majority of indictable firearm offences in Victoria pertain to:
- Category E longarms; and
- Category E handguns.
The specific penalty for each indictable offence is stipulated in the relevant legislation. Some offences stipulate that if the accused has been previously convicted in the past for the same crime, they are liable to more severe punishment.
There are many factors that the County Court must take into consideration when determining the outcome of an indictable firearm matter. All relevant evidence and circumstances must be taken into account. Further, if the prosecution fails to prove any element beyond a reasonable doubt, the accused cannot be held criminally liable for that charge.
The Court Procedure for Firearm Offences in Victoria
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If you have been charged with a summary firearm offence, your matter will be heard in the Magistrates Court of Victoria. Summary matters may involve several complex stages of case preparation and court procedure, including:
- Police Questioning
- Filing of Charges
- First Mention Hearing
- Summary Case Conference
- Contest Mention
- Contested Hearing
If you plead guilty to the summary firearm charges, your matter may be heard and finalised in one day. However, if you plead not guilty, the prosecution must prove each element of the relevant offence beyond a reasonable doubt. The prosecution’s failure to do so will result in the accused being found not guilty of that charge.
Obtaining expert legal advice in regard to summary firearm charges is crucial. Our team of specialist criminal lawyers can advise you of your legal options and represent you in the Magistrates Court to secure the best possible outcome.
If you have been charged with an indictable firearm offence, your matter might start in the Magistrates Court, but it may be finalised in the County Court. Indictable matters may involve several complex stages of case preparation and court procedure, including:
- Police Interview
- Committal Proceedings
- Plea Hearing
- Pre-trial Disclosure
- Directions Hearing
- Arraignment
- Trial
- Sentencing Hearing
Indictable cases can be heard summarily in the Magistrates Court under certain circumstances. If a charge carries a maximum sentence of 10 or fewer years imprisonment, it can be heard summarily with the consent of the accused and the Magistrates approval. It may also be possible for an experienced criminal lawyer to negotiate alternative firearm charges with the prosecution, which could result in the matter being heard in the Magistrates Court.
If you plead not guilty, the prosecution must prove each element of the relevant offence beyond a reasonable doubt. The prosecution’s failure to do so will result in the accused being found not guilty of that charge.
Obtaining expert legal advice in regard to indictable firearm charges is crucial. Our team of specialist criminal lawyers can advise you of your legal options and represent you in the County Court to secure the best possible outcome.
Things to Consider When Charged with a Firearm Offence in Victoria
Different firearm offences require different elements to be proven. If all of the elements for a particular offence cannot be proven, the accused cannot be held legally liable for committing that offence. This is why it is important to seek the help of a criminal lawyer who specialises in firearm charges. Our expert defence team at Sher Criminal Lawyers is highly experienced at defending firearm charges before the Magistrates and County Courts of Victoria. We are here to help you obtain the best possible outcome in your matter.
Things for the Accused to Consider
Our specialist team at Sher Criminal Lawyers can answer your questions and provide you with expert advice and representation in your firearm matter. We will explain your legal options to you by answering important questions such as:
- Is it possible to have my licence suspension or cancellation overturned?
- Is there a legal defence I can rely on in my firearm matter?
- Does the prosecution have enough evidence to prove my firearm charge?
- How will the circumstances of the offence affect the outcome of my matter?
- What is the likely result if I plead guilty or not guilty?
- Is it possible to have my charges negotiated to a lesser offence?
Things that the Court Must Consider
If your matter is taken to Court, the Magistrate or Judge will have to consider a wide range of factors that might prove you to be guilty or not guilty. In all firearm matters, our experienced team at Sher Criminal Lawyers prepares the best possible defence by considering factors such as:
- The reason and circumstances behind why you potentially committed an offence;
- The category of firearm involved;
- The number of firearms involved;
- Your knowledge of firearm laws;
- Intent;
- Any other elements of the offence noted in the relevant legislation.
Penalties and Sentencing for Firearm Offences in Victoria
The Victorian Courts take firearm charges seriously. Summary firearm offences heard in the Magistrates’ Court can carry a maximum penalty of 2 years’ imprisonment. The most serious indictable firearm offences noted above carry a maximum penalty of 10 years’ imprisonment.
The specific penalty for an offence is stipulated in the relevant legislation.
Penalties in relation to firearm charges may include:
- A fine
- A Good Behaviour Bond (Adjourned Undertaking)
- Suspension of a firearm licence
- Cancellation of a firearm licence
- A criminal conviction
- A Community Corrections Order
- Imprisonment
What to Do If You Are Charged with an Offence such as Unlawful Possession of a Firearm
If you have been charged or are under investigation for a firearm offence such as unlawful possession, please contact Sher Criminal Lawyers immediately. We specialise in firearm matters and understand the legal intricacies of the Firearms Act 1996 (Vic). Our expert defence team can advise and represent you in matters before the Magistrates and County Courts of Victoria. We can also help you dispute the suspension or cancellation of your firearms licence.
Please don’t hesitate to get in touch with one of our specialist criminal lawyers. We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.