Published by Geoff Harrison | 22 November 2024
Given s4D of the Firearms Act 1996 ('the Act'), the Act applies to an imitation firearm in the same way as it does to a firearm. As per s4D(2), an imitation firearm that is an imitation of a pistol is taken to be a pistol, and an imitation firearm that is an imitation of a prohibited firearm is taken to be a prohibited firearm. An imitation firearm is an object, regardless of its colour, weight, or composition or the presence or absence of any moveable parts, that substantially duplicates in appearance a firearm but that is not a firearm. However, an imitation firearm does not include an object that is produced and identified as a children's toy.
A licence cannot be issued to possess an imitation firearm other than to a firearms dealer. An imitation firearm is not required to be registered. A permit may be issued authorising the possession or use of an imitation firearm (see NSW Police link below).
In determining whether an object is an imitation firearm, the court is required to consider any packaging but also the objective or intrinsic nature of the object, given that an imitation firearm does not include any such object that is produced and identified as a children's toy: s4D(4) of the Act (see Howard, per Wilson J at [45] and [50] - [53]). The identification of the object as a children’s toy is confined to the time of possession, and the past and future use of the object are irrelevant considerations (see Dearestani, Price J at [67]).
In assessing the production of the item and whether it is identified as a children's toy, some factors may include, as noted in Garcia at [24]:
(a) The material used in manufacturing the item – plastic.
(b) The weight of the item – light weight.
(c) The size of the item – the item is slightly bigger than the comparison (real) firearm, and the “slide “of the item is shinier than the comparison (real) firearm.
(d) Any other features of the appearance of the item – the item is not an imitation of any particular brand of pistol, and the left side of the subject item has green marking and has embossed letters.
(e) There is no evidence concerning the functionality of the subject item apart from the police evidence that it had a working slide and makes a clicking noise, which was held in Darestani to be ‘not an uncommon feature of a children’s toy’.
The maximum penalty for possession or use of a pistol or prohibited firearm is 14 years imprisonment with a standard non-parole period of 4 years.
Other Sources:
Cases:
Extracted Legislation:
FIREARMS ACT 1996 - SECT 4
...
"firearm" means a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include a paintball marker within the meaning of the Paintball Act 2018 or anything declared by the regulations not to be a firearm.
FIREARMS ACT 1996 - SECT 4D
Special provisions relating to imitation firearms
(1) This Act applies to an imitation firearm in the same way as it applies to a firearm, subject to the following--
(a) the Commissioner may not issue a licence authorising the possession or use of an imitation firearm (except to a firearms dealer) but may issue a permit authorising the possession or use of an imitation firearm,
(b) an imitation firearm is not required to be registered,
(c) the holder of a permit authorising the possession or use of an imitation firearm (a
"possession or use permit" ) is not required to be authorised by a permit to acquire an imitation firearm to which the possession or use permit applies.
(2) For the purposes of the application (as provided by this section) of this Act to imitation firearms--
(a) an imitation firearm that is an imitation of a pistol is taken to be a pistol, and
(b) an imitation firearm that is an imitation of a prohibited firearm is taken to be a prohibited firearm.
Note--: Reference to a pistol includes a prohibited pistol. (See section 4C.)
(3) In this section,
"imitation firearm" means 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.
(4) However, an imitation firearm does not include any such object that is produced and identified as a children's toy.
FIREARMS ACT 1996 - SECT 7
Offence of unauthorised possession or use of pistols or prohibited firearms
(cf 1989 Act s 5, APMC 3)
(1) A person must not possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit.
Maximum penalty--imprisonment for 14 years.
Note--: Reference to a pistol includes a prohibited pistol.
(2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person--
(a) uses a pistol or prohibited firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the pistol or prohibited firearm, or
(b) contravenes any condition of the licence.
(3) If, on the trial for an offence under this section, the jury is not satisfied that the accused is guilty of the offence but is satisfied on the evidence that the person is guilty of an offence under section 7A, it may find the person not guilty of the offence but guilty of an offence under section 7A, and the accused is liable to punishment accordingly.
FIREARMS REGULATION 2017 - REG 134
Exemption relating to imitations of antique firearms
(1) A person is not required to be authorised by a permit to possess or use an imitation of an antique firearm (other than an imitation of an antique revolver).
(2) In this clause,
"antique firearm" and
"antique revolver" have the same meanings as they have in section 6A of the Act.
FIREARMS REGULATION 2017 - REG 136 Exemption relating to imitation firearms that are laser target shooting devices for biathlons and pentathlons
FIREARMS REGULATION 2017 - REG 136
Exemption relating to imitation firearms that are laser target shooting devices for biathlons and pentathlons
(1) A person who is of or above the age of 18 years is not required to be authorised by a permit to acquire, supply (including advertise for supply), possess or use an imitation firearm that is a biathlon or modern pentathlon laser target shooting device if--
(a) the person is or has within the previous 5 years been a participant, athlete, coach or official involved in a biathlon or modern pentathlon event, training session or competition, and
(b) the purpose of the acquisition, supply (including the advertisement for supply), possession or use is to enable the person to participate in the sport of biathlon or modern pentathlon.
(2) A person who is under the age of 18 years is not required to be authorised by a permit to possess or use an imitation firearm that is a biathlon or modern pentathlon laser target shooting device if--
(a) the person is or has within the previous 5 years been a participant, athlete, coach or official involved in a biathlon or modern pentathlon event, training session or competition, and
(b) the possession or use is under the supervision of a person referred to in subclause (1) with that supervision to be as required by clause 156, and
(c) the purpose of the possession or use is to enable the person to participate in the sport of biathlon or modern pentathlon.
(3) A parent, guardian or coach of a person referred to in subclause (2) (the
"young person" ) is not required to be authorised by a permit to acquire or possess an imitation firearm that is a biathlon or modern pentathlon laser target shooting device if the purpose of the acquisition or possession is to enable the young person to participate in the sport of biathlon or modern pentathlon.
(4) In this clause,
"participate" , in relation to the sport of biathlon or modern pentathlon, includes receive instruction in, practise, train, coach or compete in the sport.
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