At Chidiac & Associates, we provide experienced criminal defence representation to clients facing firearms charges throughout Sydney and New South Wales. We carefully examine the circumstances in which the firearm was located, its registration status and the evidence concerning the accused person's knowledge and possession.

What is Possessing an Unregistered Firearm?

The offence is contained in section 36(1) of the Firearms Act 1996 (NSW).

Section 36(1) provides that a person must not supply, acquire, possess or use a firearm that is not registered.

The offence is concerned specifically with the registration status of the firearm. It is separate from the offence of possessing or using a firearm without the required licence or permit.

Elements of Possessing an Unregistered Firearm

To establish an offence under section 36(1), the Prosecution must prove the relevant elements beyond reasonable doubt.

1. The Thing Was a Firearm

The Prosecution must establish that the item alleged to have been possessed falls within the definition of a firearm under the Firearms Act 1996.

2. The Firearm Was Not Registered

The Prosecution must establish that the firearm was not registered at the relevant time.

The registration status of the particular firearm can therefore be an important issue in the Prosecution case.

3. The Accused Possessed the Firearm

The Prosecution must establish that the accused possessed the unregistered firearm.

Possession may raise particular issues where a firearm is found:

• in a shared residence;
• in a vehicle;
• in a garage or storage area;
• in another person's property; or
• in a location accessible to multiple people.

The fact that a firearm is discovered on premises occupied by the accused does not necessarily resolve the question of possession.

What Are the Penalties?

Under section 36(1), the maximum penalty depends upon the type of firearm.

Pistol or Prohibited Firearm

Where the firearm is a pistol or prohibited firearm:

Maximum penalty: 14 years' imprisonment

Other Firearm

For any other firearm:

Maximum penalty: 5 years' imprisonment

The legislation expressly provides that a reference to a pistol includes a prohibited pistol.

Penalties at a Glance

These are maximum penalties, not automatic sentences. The appropriate sentence depends upon the circumstances of the offence and the offender.

Defence Under Section 36(2)

Section 36(2) provides an important statutory defence.

It is a defence to a Prosecution under section 36 where the defendant proves that:

• they did not know, and could not reasonably have been expected to know, that the firearm was unregistered; and
• they were not the owner of the firearm at the time of the alleged offence.

The requirements of this defence should be carefully considered based upon the particular circumstances.

Unregistered vs Unlicensed Firearms

It is important to distinguish between registration and licensing.

Under the Firearms Act 1996, a person generally must be authorised by a licence or permit to possess or use a firearm. Section 7A(1) provides a separate offence of possessing or using a firearm without the required authorisation, carrying a maximum penalty of 5 years' imprisonment.

A person may therefore face separate or additional allegations depending upon the circumstances.

Can I Defend a Possession of an Unregistered Firearm Charge?

Being charged does not mean that you are guilty. The Prosecution bears the burden of proving the relevant offence beyond reasonable doubt.

Depending upon the circumstances, potential issues may include:

• the accused did not possess the firearm;
• the firearm was not in fact unregistered;
• the accused did not know, and could not reasonably have been expected to know, that it was unregistered;
• the accused was not the owner and the statutory defence applies;
• another person had possession or control of the firearm;
• the firearm was found in a shared or accessible location; or
• the Prosecution evidence concerning possession is unreliable or insufficient.

The appropriate defence will depend upon the evidence in the individual matter.

Evidence in Firearms Cases

The Prosecution may rely upon:

• the firearm itself;
• registration records;
• photographs;
• fingerprints or DNA;
• CCTV footage;
• police body-worn camera footage;
• witness statements;
• admissions; and
• evidence concerning where and how the firearm was discovered.

At Chidiac & Associates, we carefully examine the circumstances of the search and seizure and the evidence connecting the accused to the firearm.

Sentencing for Possessing an Unregistered Firearm

Where a person is convicted, the court may consider:

• the type of firearm;
• whether it was a pistol or prohibited firearm;
• the circumstances in which it was possessed;
• how the firearm was stored;
• whether it was loaded;
• the duration of possession;
• the accused person's criminal history;
• personal circumstances;
• remorse and prospects of rehabilitation; and
• whether an early guilty plea was entered.

The type of firearm can be particularly significant given the substantial difference between the 5-year and 14-year maximum penalties.

How We Can Help

At Chidiac & Associates, we provide:

• confidential advice about your firearms charge;
• assessment of the firearm's registration status and classification;
• analysis of police and forensic evidence;
• examination of search and seizure evidence;
• advice concerning statutory defences;
• representation at court;
• negotiations with prosecutors where appropriate;
• preparation for defended hearings; and
• sentencing advice and representation.

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