KEY TAKE OUTS:
- Possessing an imitation weapon without an authorised permit can result in a maximum penalty of up to 14 years imprisonment.
- Despite not functioning, imitation weapons are classified as ‘dangerous weapons’ under the Crimes Act 1900, escalating maximum penalties.
- If an imitation weapon can be classified as a ‘children’s toy’ there is a possibility of it not being an offence.
Definition of an ‘imitation weapon’:
In simple terms, an imitation weapon is a non-firing object that substantially duplicates the appearance of a firearm but is not a firearm, for example, a gel blaster or BB gun.
The definition of an ‘imitation weapon’ is drawn from the Firearms Act 1996 (NSW), which regulates the use, registration and keeping of firearms in NSW. Under section 4D(3) it specifies that an imitation firearm is ‘an object that regardless of its colour, weight or composition or the presence or absence of any moveable parts, substantially duplicates in appearance a firearm but that is not a firearm’.
If found to be possessing a gel blaster or BB gun in NSW without a valid permit, section 7A of the Firearms Act 1996 (NSW) prescribes a maximum penalty of five years imprisonment.
Throughout Australia, each state has differing laws regarding these objects. For example, in Queensland, an individual can legally own a non-firing imitation gun without any license or permit required. In comparison, the state of New South Wales requires a permit to be obtained.
To obtain said permit, an individual must complete the P634 ‘Application for a Firearms Permit’ form and the ‘Imitation Firearm Legitimate Reason’ form, one may also be required to provide any supporting documentation requested. The permit will be issued for a maximum of five years and a fee of $75 will be requested in accompaniment to the application.
If an individual is found to be possessing or using an imitation firearm within NSW without the required permit, under the Firearms Act 1996 it is classified as an offence, the maximum penalty this offence carries is 14 years imprisonment, with a standard non-parole period of 4 years.
Defence to imitation firearm charge:
A possible offence available to firearm charges in NSW is specified under section 4D(4) of the Firearms Act 1996. This section states ‘an imitation firearm does not include any such object that is produced and identified as a children’s toy’.
According to the case Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017], in determining whether an imitation firearm is a children’s toy will require consideration of the purpose of production and manufacture and the appearance of the object. On the facts, a range of factors were considered that the imitation gun was not a children’s toy, including;
- The fact that the items were made of metal rather than a form of plastic or lighter weight material;
- The weight of the item was comparable to a firearm;
- The moveable parts of the item replicated the operation of a firearm;
- No bright colours were used on the item, rather colours consistent with a firearm;
- Expert ballistics evidence pointed to the fact that the item duplicated the appearance of a firearm such as a revolver or self-loading pistol.
By the court taking into consideration the above, it was held in this case that the imitation weapon could not be labelled as a ‘children’s toy’ even when solely considering the packaging and other removable features. Her Honour concluded that calling this item a children’s toy was a “conclusion contrary to the purpose of the legislation”, being assurance of the communities’ safety.
Further, the case of Darestani v R [2019] NSWCCA 248 held that when deciding whether an item is an imitation firearm or not, the use and intention of the accused at the time of possession is of relevance to whether the item falls within the definition of a children’s toy. For example, an item is likely to lose any chance of identification as a children’s toy if held to someone’s head saying, “you move, and I will shoot”.
Perception of threat:
Drawing on the court’s decision in the case of R v Faletau, although imitation weapons are fake and cannot cause harm, it can still induce the same fear and terror as an actual firearm. This decision represents New South Wales attempt to regulate the use of imitation weapons through the requirement of permits and the application process.
Is using an imitation gun considered an aggravating factor?
Under section 4(1) of the Crimes Act 1900, an imitation firearm can be classified as a ‘dangerous weapon’ along with real firearms and other weapons. With reference to this definition, often offences committed using an imitation weapon will be considered as ‘circumstances in aggravation’.
Understanding that using an item of this type can be considered as an aggravating factor to other criminal offences is crucial for understanding the severity of the associated penalties. For instance, the offence of armed robbery carries a maximum penalty of 20 years imprisonment. However, if the robbery is aggravated by being ‘armed with a dangerous weapon’, the maximum penalty is 25 years imprisonment.
Therefore, even if the weapon in question is an imitation firearm, incapable of being fired, its use could still lead to an increase in the maximum penalty for the associated offence.
Need Expert Legal Assistance?
If you find yourself facing charges related to imitation weapons, it is crucial to seek expert legal advice. The criminal law team at Coutts is here to provide comprehensive support and guidance. Our experienced lawyers are dedicated to achieving the best possible outcome for our clients. Contact us today for a consultation and let us help you navigate the legal challenges ahead.
