POSSESSION OF AIR RIFLE

PRINCIPLES AND OBJECT OF THE WEAPONS ACT

Section 3 of the Weapons Act 1990 (Qld) sets out the principles and object of the Act, which says:

(1) The principles underlying this Act are as follows—

(a) weapon possession and use are subordinate to the need to ensure public and individual safety; (b) public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and carriage of weapons. (2) The object of this Act is to prevent the misuse of weapons.

HOW OBJECT OF THE WEAPONS ACT IS TO BE ACHIEVED

Section 4 of the Weapons Act 1990 (Qld) sets out how the object of the Act is to be achieved, which says:

The object of this Act is to be achieved for firearms by—

(a) prohibiting the possession and use of all automatic and self-loading rifles and automatic and self-loading shotguns except in special circumstances; and

(b) establishing an integrated licensing and registration scheme for all firearms; and

 (c) requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm; and

 (d) providing strict requirements that must be satisfied for—

(i) licences authorising possession of firearms; and

(ii) the acquisition and sale of firearms; and

(e) ensuring that firearms are stored and carried in a safe and secure way.

WHAT THE LAW SAYS

Section 50 of the Weapons Act 1990 (Qld) governs the unlawful possession of weapons, including an air rifle. Section 50 says:

• Possession of weapons

• A person must not unlawfully possess a weapon.

Maximum penalty—

 (a) if the person unlawfully possesses 10 or more weapons at least 5 of which are category D, E, H or R weapons—13 years imprisonment; or

(b) if paragraph (a) does not apply and the person unlawfully possesses 10 or more weapons—500 penalty units or 10 years imprisonment; or

(c) if paragraphs (a) and (b) do not apply—

(i) for a category D, H or R weapon—300 penalty units or 7 years imprisonment; or

(ii) for a category C or E weapon—200 penalty units or 4 years imprisonment; or

(iii) for a category A, B or M weapon—100 penalty units or 2 years imprisonment.

Minimum penalty—

(d) for an offence, committed by an adult, to which paragraph (a), (b), (c)(i) or

      (c)(ii) applies—

• if the person unlawfully possesses a firearm and uses the firearm to commit an indictable offence—18 months imprisonment served wholly in a corrective services facility; or
• if the person unlawfully possesses a firearm for the purpose of committing or facilitating the commission of an indictable offence—1 year’s imprisonment served wholly in a corrective services facility; or
• if the person unlawfully possesses a short firearm in a public place without a reasonable excuse—1 year’s imprisonment served wholly in a corrective services facility; or

(e) for an offence, committed by an adult, to which paragraph (c)(iii) applies—

• if the person unlawfully possesses a firearm and uses the firearm to commit an indictable offence—9 months imprisonment served wholly in a corrective services facility; or
• (ii) if the person unlawfully possesses a firearm for the purpose of committing or facilitating the commission of an indictable offence—6 months imprisonment served wholly in a corrective services facility.

(1A) For the purpose of subsection (1), penalty, paragraph (d)(iii), but without limiting that provision, it is a reasonable excuse to unlawfully possess the short firearm in the public place if—

(a) a licence was in force within the 12 months immediately before the day the person committed the offence but is no longer in force at the time of the offence; and

(b) the person would have been authorised under this Act to possess the short firearm in the public place at the time of the offence if the licence was still in force at that time; and

(c) it was not a reason for the licence being no longer in force that the licence had been surrendered, suspended or revoked under this Act.

 (1B) It is not a reasonable excuse for subsection (1), penalty, paragraph (d)(iii) to unlawfully possess the short firearm in the public place for the purpose of self-defence.

 (2) A court, in sentencing a person found guilty of an offence against subsection (1), may take into consideration whether the person stored the weapon in the way prescribed under a regulation for the weapon.

(3) In this section— public place includes any vehicle that is in or on a public place.

WHAT IS A CATEGORY A WEAPON?

Category A weapons are defined in the Weapons Categories Regulation 1997 as:

(1)Each of the following is a category A weapon if it has not been rendered permanently inoperable—

(a) a miniature cannon under 120cm in barrel length that is a black powder and muzzle loading cannon, depicting a scale model of an historical artillery piece or naval gun;

(b) an air rifle;

(c) a rim-fire rifle (other than a self-loading rim-fire rifle);

(d) a shotgun other than a lever action shotgun, pump action shotgun or self-loading shotgun;

(e) a powerhead;

(f) a break action shotgun and rim-fire rifle combination;

(g) an air gun;

(h) a weapon mentioned in any of paragraphs (a) to (g) that is a blank-fire firearm.

(2) A conversion unit is also a category A weapon.

(3) In this section—

air gun means a firearm designed to discharge a projectile (including, for example, an arrow) by compressed air, or other compressed gas, not generated by an explosive.

conversion unit means a unit or device or barrel that is capable of being used for converting a category A weapon that is a firearm from one calibre to another calibre.

WHAT THE POLICE MUST PROVE

To prove the offence of possessing an air rifle, the police must prove the following beyond reasonable doubt:

1. You unlawfully;
2. Possessed an air rifle.

WHAT DOES UNLAWFUL MEAN?

The dictionary in the Weapons Act 1990 (Qld) defines unlawful, which says:

unlawful means without lawful justification or excuse.

WHAT DOES POSSESSION MEAN?

The dictionary in the Weapons Act 1990 (Qld) defines possession, which says:

possession includes in relation to anything—

(a) having the thing in one’s custody; and

(b) having the thing under one’s control in any place, whether or not another has custody of the thing; and

(c) having an ability to obtain custody of the thing at will; and

(d) having a claim to custody of the thing which the claimant has committed to the custody of another, notwithstanding that the thing is temporarily not in the control of the person having such claim.

MAXIMUM PENALTY

The maximum penalty will depend on if you have any other weapons in your possession at the time you possess the air rifle.

If you had unlawful possession of 10 or more weapons, at least 5 of which were Category D, E, H or R weapons – 13 years imprisonment.

If you had unlawful possession of 10 or more weapons, but not more than 4 of them were Category D, E, H or R weapons -500 penalty units or 10 years imprisonment.

If you do not have possession of 10 or more weapons, then the maximum penalty for possessing the air rifle is 100 penalty units or 2 years imprisonment.

WHERE WILL MY CHARGE BE HEARD?

This will depend on the maximum penalty for the offence you are charged with. The charge may be finalised in the District Court or the Magistrates Court. If you are charged with only possessing the air rifle and you are subject to 2 years imprisonment, then this will be finalised in the Magistrates Court.

ARE THERE ANY DEFENCES?

Possible defences to a charge of unlawfully possessing an air rifle are:

1. The thing police allege is an air rifle, is not an air rifle.
2. You did not possess the air rifle.

WHAT TO DO IF YOU HAVE BEEEN CHARGED WITH POSSESSING AN AIR RIFLE

If you have charged with unlawfully possessing a weapon, being an air rifle, get legal advice now. Don’t sit back thinking the charge will go away or it is minor. Every criminal offence is serious and can have serious consequences for you. You need the experience of the Criminal Lawyers Brisbane Group in your corner fighting for you. Pick up the phone and dial (07) 3153 6215 or fill out the form below for a free no-obligation chat. Contacting us may be the best thing you do.