Sentencing and Firearms Offences (Vic)
In Victoria, firearms offences are governed by the Firearms Act 1996. These offences can attract a range of penalties from small fines to lengthy terms of imprisonment. This page deals with how courts approach sentencing for firearms offences. General information about firearms offences in Victoria can be found in this article.
Victorian Sentencing Manuel
In August 2023, the Victorian Sentencing Manual was updated to include information about sentencing practices relating to firearms offences. Sentencing Manuals are a resource used by lawyers, judges and others involved in the sentencing process.
The Victorian Sentencing Manual outlines the factors that affect how offenders are sentenced for various firearms offences. Some of this information is outlined below.
Possession of firearm by Prohibited Person
Where a Prohibited Person is found guilty of possessing, using or carrying a firearm, the court will most commonly impose a sentence of imprisonment. Where the offence was not associated with criminal activity, the defendant will generally receive a low level custodial sentence unless their criminal history warrants a longer sentence. These cases usually attract a sentence of less than two years imprisonment.
Where the offence was associated with criminal activity, it is likely to attract a higher level custodial sentence.
An offence of Prohibited Person possessing a firearm will be considered particularly serious if:
- The offender has a significant criminal history;
- The offender is known to operate in criminal circles
An offence will be considered of a low level of seriousness if:
- The offender does not have a prior history of firearms offences or violence offences; and
- The offender is a Prohibited Person only because of a previous Intervention Order, or for unrelated, minor offending.
If there are strong mitigating factors, the court may impose a combination sentence consisting of a term of imprisonment and another order such as a community corrections order. However, if other serious offences have been committed, this may not be appropriate.
Other firearm possession offences
The Firearms Act 1996 also contains a range of other offences relating to possession of firearms including the offences of possessing a firearm without a licence and possessing an unregistered firearm. Where a person is found guilty of one of these offences, their level of culpability will be assessed with reference to a number of factors.
In general, a person will be considered less culpable if they possessed a firearm in a context that was not associated with criminal activity. However, a firearm possession offence may be serious even where it was not associated with criminal activity.
In assessing the seriousness of a firearm possession offence, courts consider:
- The defendant’s criminal history
- Any circumstantial evidence that suggests the firearm was associated with criminal activity
- Whether the offender also possessed ammunition
- Whether the firearm had a lawful use
Factors that may aggravate the seriousness of a firearm possession offence are:
- The possession of a large number of firearms
- The nature of the firearms – for example if they are modified for ease of concealment
- The weapon being loaded or the presence of ammunition
- The firearm not being safely stored
- The firearm being possessed for a long period of time
- The defendant being a Prohibited Person or having a firearm prohibition order
- The firearms having a high monetary value
Factors that make the possession of a firearm less serious are:
- the firearm was not functional and
- the offender did not possess ammunition.
Contravening a firearm prohibition order
A firearm prohibition order is an order that prohibits a person from acquiring, possessing, carrying or using a firearm. It is an offence for a person to whom a firearm prohibition order applies to possess, carry, use, or acquire a firearm. This offence is punishable by up to 10 years imprisonment.
An offence of contravening a firearms prohibition order will be viewed as particularly serious if the offender was served with the order shortly before the offence as this will be taken as deliberate defiance of the order.
The offence of discharging a firearm with reckless disregard for the safety of a person carries a maximum penalty of 15 years imprisonment. This offence is aggravated where the firearm is discharged at a person or at a premises or vehicle where others may be present. This offence may be viewed less seriously if committed when there was no one in the immediate vicinity.
Case law has established that the sentencing principle of general deterrence is of utmost importance when dealing with offenders for firearms offences. General deterrence refers to the need to discourage others from committing similar offences by making an example of the offender. In cases that are particularly serious, the sentencing principles of denunciation, community protection and just punishment will also be relevant.
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