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September 30, 2022

Possessing a Controlled or Prohibited Weapon without lawful excuse in Victoria is an offence. Possession of a Controlled Weapon is less serious than possession of a Prohibited Weapon.

For Prohibited Weapons, section 5AA of the Control of Weapons Act 1990 states that:

“A person must not possess, use or carry a prohibited weapon (other than an imitation firearm) without an exemption under section 8B or an approval under section 8C”

Penalty: 240 penalty units or imprisonment for 2 years.

Schedule 2 of the Control of Weapons Regulations 2021 detail weapons which are classified as prohibited. They include swords, tasers, certain knives, body armour and martial arts weapons.

For Controlled Weapons, section 6 of the Control of Weapons Act 1990 states that:

“A person must not possess, carry or use a controlled weapon without lawful excuse”

Penalty: 120 penalty units or imprisonment for 1 year.

Schedule 1 of the Control of Weapons Regulations 2021 define Controlled Weapons as:

  • Spear gun;
  • Baton or Cudgel, being a short stout stick made of any material designed as a weapon, including the weapon commonly known as a “police nightstick”;
  • Bayonet, being a thrusting, striking or cutting weapon designed to be attached to a firearm; and
  • Cattle prod.
The elements of Possession of a Controlled/Prohibited Weapon

To be found guilty of Possession of a Prohibited Weapon, the Prosecution must prove the following elements, beyond reasonable doubt:

  • The offender possessed, used or carried a prohibited weapon that was not an imitation firearm; and
  • The weapon was a prohibited weapon as per schedule 2 of the Control of Weapons Regulations 2021; and
  • The offender did not have an exception under section 8B or an approval under section 8C.

To be found guilty of Possession of a Controlled Weapon, the Prosecution must prove the following elements, beyond reasonable doubt:

  • The offender possessed, carried or used a controlled weapon without lawful excuse; and
  • The weapon fell under the definition of a controlled weapon from Schedule 1 of the Control of Weapons Regulations 2021.
Actions which may lead to a Possession of Controlled/Prohibited Weapon charge

Possessing a Controlled/Prohibited Weapon is not limited to having it directly on you in any given moment. When the offender has no lawful excuse or an exemption/approval where applicable, possessing in these situations may lead to a charge:

  • Having a weapon in your vehicle, even when you are not using it;
  • Having a weapon in your home;
  • You found a weapon and kept it without knowing it was controlled or prohibited;
  • You legally purchased a weapon from a website and did not know it was controlled or prohibited;
  • Having a weapon on your person.
Defences

Defences to Possession of a Prohibited Weapon include:

  • The offender is an employee of a person who has the approval to possess a prohibited weapon and they were using it in the course of employment;
  • The offender has a permit for the weapon;
  • The offender was not actually in possession of the weapon.

Defences to Possession of a Controlled Weapon include:

  • The offender was not in possession of the controlled weapon;
  • The offender was in possession of the controlled weapon in the course of employment, for example as a security guard;
  • The offender was in possession for the purposes of recreation, entertainment or has a legitimate collection of weapons.

If you have been charged with possessing either a Prohibited or Controlled Weapon, we recommend you contact Nardi Lawyers to discuss what defences are available.

Sentence

The most common sentences for individuals who pleaded guilty to Possession of a Prohibited Weapon between 1 July 2018 to 30 June 2021 are:

  • Imprisonment – 41.7%
  • Fine – 25.5%
  • Community Correction Order – 20.8%
  • Adjourned Undertaking – 10.9%
  • Other – 1.1%

The most common sentences for individuals who pleaded guilty to Possession of a Controlled Weapon between 1 July 2018 to 30 June 2021 are:

  • Imprisonment – 48.4%
  • Fine – 20.2%
  • Community Correction Order – 19.5%
  • Adjourned Undertaking – 10.6%
  • Other – 1.3%

See our article on Sentences here for further information

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