The offence can arise from a range of circumstances, including allegations that a firearm was discharged in a street, park, public area or other location where members of the public were present or likely to be present.

The circumstances surrounding the discharge are critical. The Prosecution must establish the relevant elements of the offence beyond reasonable doubt, and issues such as where the firearm was discharged, the circumstances in which it was discharged and whether the accused had a lawful purpose or reasonable excuse may be important.

At Chidiac & Associates, we provide experienced criminal defence representation to clients facing firearm offences throughout Sydney and New South Wales. We carefully examine the circumstances of the allegation, the Prosecution evidence and whether the elements of the offence can be established.

What is Discharging a Firearm in a Public Place?

The principal offence is contained in section 93G(1)(b) of the Crimes Act 1900 (NSW).

Section 93G provides that a person commits an offence if they fire a firearm or spear gun in or near a public place.

The offence is commonly described as discharging a firearm in a public place, although the legislation specifically refers to firing a firearm "in or near" a public place.

The offence is distinct from simply possessing a firearm in a public place. Section 93G also contains separate offences concerning possession of a loaded firearm in a public place and using or carrying a firearm in a manner likely to injure or endanger another person or property.

Elements of Discharging a Firearm in or Near a Public Place

To establish an offence under section 93G(1)(b), the Prosecution must prove the relevant elements beyond reasonable doubt.

1. The Accused Fired a Firearm

The Prosecution must establish that the accused person fired a firearm.

The precise circumstances of the alleged discharge may be important, including whether the Prosecution can establish that the firearm was capable of firing and that it was the accused who discharged it.

2. The Firearm Was Fired in or Near a Public Place

The firearm must have been fired in or near a public place.

The location of the alleged discharge will therefore be an important issue.

A public place may include locations such as:

• public roads;
• streets;
• parks;
• public reserves;
• shopping areas;
• car parks;
• public transport areas; and
• other places accessible to members of the public.

The Prosecution does not necessarily need to establish that the firearm was discharged directly in a location occupied by members of the public. The legislation extends to firing a firearm near a public place.

The precise circumstances and location must therefore be carefully examined.

What is a Firearm?

The meaning of firearm is determined by the applicable NSW firearms legislation.

Whether an object constitutes a firearm can be an important issue in some Prosecutions, particularly where the nature or functionality of the object is disputed.

The Prosecution may rely upon:

• the firearm itself;
• photographs;
• forensic examination;
• ballistic evidence;
• police evidence;
• ammunition recovered from the scene; and
• other expert evidence.

What Are the Penalties for Discharging a Firearm in a Public Place?

Under section 93G(1) of the Crimes Act 1900 (NSW), a person who fires a firearm or spear gun in or near a public place is liable to:

10 years' imprisonment

This is the maximum penalty available for the offence.

The same maximum applies to the other forms of conduct prohibited by section 93G(1), including possessing a loaded firearm in a public place or firing or carrying a firearm in a manner likely to injure or endanger another person or property.

A maximum penalty is not an indication that a sentence of imprisonment will automatically be imposed. The actual sentence depends upon the circumstances of the offence and the offender.

Reasonable Excuse or Lawful Purpose

Section 93G(3) provides an important statutory protection.

A person is not guilty of an offence under section 93G for possessing or doing anything referred to in subsection (1) if the person satisfies the court that they:

• had a reasonable excuse for possessing it or doing it; or
• possessed it or did it for a lawful purpose.

Whether a reasonable excuse or lawful purpose is available will depend upon the particular circumstances.

The circumstances surrounding the discharge, the purpose for which the firearm was being used and the location in which it was discharged may therefore be highly relevant.

When Might a Firearm Discharge Be Lawful?

There are circumstances in which the use of a firearm may have a lawful purpose.

For example, the circumstances may involve:

• lawful shooting activities;
• authorised firearms use;
• activities conducted at an appropriate shooting range;
• occupational use;
• circumstances involving lawful authority; or
• another circumstance recognised by law.

However, whether a particular discharge was lawful depends upon the precise circumstances, including the location, the purpose of the firearm's use and compliance with applicable firearms laws.

A person should obtain legal advice before assuming that a particular circumstance constitutes a lawful purpose or reasonable excuse.

Discharging a Firearm in a Public Place vs Other Firearm Offences

A single incident may result in multiple firearm charges.

For example, depending upon the circumstances, the Prosecution may allege:

• discharging a firearm in or near a public place;
• possessing a loaded firearm in a public place;
• using or carrying a firearm in a manner likely to injure or endanger another person;
• firing a firearm at a dwelling-house or building;
• possessing an unauthorised firearm;
• possessing ammunition without the appropriate authority; or
• other offences under the Firearms Act 1996 (NSW).

The precise charges should therefore be carefully considered rather than assuming that every firearm incident constitutes the same offence.

Firing at a Dwelling-House or Building

A more serious offence may arise under section 93GA of the Crimes Act 1900 (NSW) where a person fires a firearm at a dwelling-house or other building with reckless disregard for the safety of any person.

The maximum penalty is:

14 years' imprisonment

The maximum increases to:

16 years' imprisonment

where the offence occurs:

• during a public disorder; or
• in the course of organised criminal activity.

Importantly, the Prosecution does not need to prove that a person was actually placed in danger by the firing of the firearm.

This is a substantially more serious offence than the ordinary offence of firing a firearm in or near a public place.

Causing Danger With a Firearm

Section 93G also covers circumstances beyond simply discharging a firearm.

A person may commit an offence where they:

• possess a loaded firearm in a public place;
• possess a loaded firearm in another place so as to endanger another person's life;
• fire a firearm in or near a public place; or
• carry or fire a firearm in a manner likely to injure or endanger another person or property, or with disregard for the safety of themselves or another person.

Each of these forms of conduct carries a maximum penalty of:

10 years' imprisonment

Defending a Discharging a Firearm Charge

Being charged with discharging a firearm in a public place does not mean that you are guilty.

The Prosecution bears the burden of proving the relevant offence beyond reasonable doubt.

Depending upon the circumstances, possible issues may include:

• the accused did not fire the firearm;
• the object was not a firearm;
• the firearm was not fired;
• the firearm was not fired in or near a public place;
• the location does not constitute a public place;
• the Prosecution evidence is unreliable;
• identification evidence is unreliable;
• forensic evidence does not establish that the accused discharged the firearm;
• CCTV or other video evidence contradicts the Prosecution case;
• the accused had a reasonable excuse;
• the accused was acting for a lawful purpose; or
• the Prosecution cannot establish the charge beyond reasonable doubt.

The appropriate defence will depend upon the precise allegations and evidence.

Evidence in Firearm Discharge Cases

Firearm Prosecutions can involve substantial forensic and technical evidence.

The Prosecution may rely upon:

• CCTV footage;
• police body-worn camera footage;
• eyewitness accounts;
• photographs;
• firearm examination;
• ballistic evidence;
• ammunition recovered from the scene;
• fingerprints;
• DNA evidence;
• forensic examination of the firearm;
• gunshot residue evidence;
• mobile phone evidence;
• photographs or videos taken by witnesses; and
• statements allegedly made by the accused.

At Chidiac & Associates, we carefully examine the Prosecution evidence to determine whether it establishes that the accused discharged the firearm in the circumstances alleged.

Firearms Licence Consequences

A conviction for a firearm offence can have consequences beyond the criminal sentence.

Depending upon the offence and the circumstances, a person may face consequences concerning:

• their firearms licence;
• their ability to possess firearms;
• their ability to acquire firearms or ammunition;
• firearms registrations;
• employment requiring a firearms licence; and
• future applications for firearms licences.

The criminal proceedings and firearms licensing consequences should therefore be considered together.

Sentencing for Discharging a Firearm in a Public Place

The maximum penalty for the section 93G offence is 10 years' imprisonment. The actual sentence imposed will depend upon the objective seriousness of the offending and the offender's subjective circumstances.

Factors that may be relevant include:

• the circumstances of the discharge;
• the location;
• whether members of the public were present;
• the number of shots fired;
• the type of firearm;
• whether ammunition was lawfully possessed;
• whether anyone was injured;
• whether anyone was placed at risk;
• the distance between the firearm and other people;
• whether the firearm was discharged intentionally or accidentally;
• the offender's criminal history;
• whether the offender pleaded guilty;
• the offender's prospects of rehabilitation; and
• the offender's personal circumstances.

The court will consider the totality of the circumstances when determining the appropriate sentence.

Penalties for Firearm Discharge Offences

These are maximum penalties. They are not mandatory sentences, and the sentence imposed in an individual matter will depend upon the circumstances of the offending and the offender.

How We Can Help

A charge involving the discharge of a firearm requires careful consideration of both the criminal allegations and the evidence relied upon by the Prosecution.

At Chidiac & Associates, we provide:

• confidential advice about your firearm charges;
• representation during police investigations;
• advice concerning police interviews;
• detailed analysis of the Prosecution evidence;
• examination of CCTV and video footage;
• assessment of forensic and ballistic evidence;
• consideration of reasonable excuse and lawful purpose;
• advice concerning potential defences;
• representation at court appearances;
• negotiations with prosecutors where appropriate;
• preparation for defended hearings and trials; and
• sentencing advice and representation.

Our approach is built on thorough preparation, practical advice and strong courtroom advocacy.