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If You Have Been Charged with Using a Firearm in the Commission of an Offence:

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  • Aggravated Assault
  • Wilful Damage
  • Common Assault
  • Public Display of a Nazi Symbol or the Nazi Salute
  • Harassing a Witness
  • Recklessly Causing Serious Injury In Circumstances Of Gross Violence
  • Affray Charges In Victoria
  • Intentionally Causing Serious Injury in Circumstances of Gross Violence
  • Intentionally causing Serious Injury
  • Recklessly Causing Serious Injury
  • Intentionally Causing Injury
  • Administering Certain Substances
  • Threats to Kill and Assault Offences
  • Stalking
  • Negligently Causing Serious Injury
  • Extortion With Threat to Kill
  • Extortion, With Threats to Destroy and/or Endanger Property
  • Threatening to Prevent Arrest
  • Using a Firearm in the Commission of an Offence
  • Being Armed with Criminal Intent
  • Kidnapping
  • Robbery
  • Armed Robbery
  • Home Invasion
  • Aggravated Home Invasion
  • Arson
  • Criminal Damage
  • False Imprisonment
  • Public Nuisance
  • Riot
  • Rout Offence
  • Unlawful Assembly
  • Intentionally Causing a Very Serious Disease

What Does it Mean to Use a Firearm in the Commission of an Offence?

Using a firearm in the commission of an offence is a serious indictable offence in Victoria, outlined under Section 31A of the Crimes Act 1958 (CA). This includes individuals found guilty of a serious offence while carrying or in charge of a firearm (or imitation firearm).

Firearm offences can range from possession to more serious charges, such as:

Examples of Using a Firearm in the Commission of an Offence:

Common scenarios that fall under this offence include:

  • Carrying a handgun during drug deals.
  • Threatening someone with a firearm.
  • Using a crossbow in a public space during a dispute.
  • Shooting at a business premises.

Police Interview:

If you are alleged to have used a firearm in committing a serious offence, you may be asked to attend a formal police interview, often recorded for evidence. Before the interview, you have the right to consult with a lawyer. We can provide you with confidential legal advice to address your concerns, including whether to make a statement, your rights during the interview, and how to respond to police questioning. Our lawyers can accompany you to ease your apprehension and ensure your rights are protected.

What must the prosecution prove?

In order for the prosecution to secure a conviction for the offence of using a firearm in the commission of a crime, they must demonstrate, beyond a reasonable doubt, the following elements:

1. Commission of an Offence:

You must have committed a serious (indictable) offence.

2. Possession of a Firearm or Imitation Firearm:

At the time the offence was committed, you must have been carrying a firearm or an imitation firearm.

3. Definition of a Firearm:

The prosecution must establish that the object in question qualifies as a firearm under the Firearms Act 1996 (Vic), meaning it is a device designed, adapted, or capable of being modified to discharge shots or bullets, or a device that uses gas expansion or combustion for propulsion.

4. Definition of an Imitation Firearm:

If the prosecution is alleging the use of an imitation firearm, they must prove that the object resembles a real firearm to the extent that it could reasonably be mistaken for one by the general public and that it is not designed to discharge any missile.

If the prosecution fails to meet this burden of proof for any of these elements, the defendant must be acquitted of the charges.

Questions to Consider Before Pleading Guilty or Not Guilty:

To assess your chances of success in defending your charge, consider the following:

  • Has the prosecution properly outlined the charge?
  • Do they have a strong case against you?
  • Should you plead guilty or not guilty?
  • Were you carrying a firearm during the offence?
  • What options are available to minimise your penalty?
  • Do you have a lawful reason for using a firearm?

Where will my case be heard?

Charges involving the use of a firearm in the commission of an offence are typically addressed summarily in the Magistrates’ Court of Victoria. However, these matters may also be adjudicated in the County Court of Victoria.

Factors and Defences to consider:

If you choose to plead not guilty, various defences may be applicable depending on your circumstances, including:

  • The prosecution failing to prove all elements of the offence beyond a reasonable doubt.
  • Lack of intent to carry the firearm.
  • Duress (being forced to carry a firearm).
  • Alibi evidence proving you were not present at the time of the offence.
  • Mistaken identity.

Penalties for using a firearm in the commission of an offence:

If found guilty, penalties for using a firearm in the commission of an offence can include:

  • Imprisonment (up to 5 years).
  • Diversion programs (for first-time offenders or those with mental illness).
  • Community corrections orders.
  • Fines.

What is a Diversion?

A diversion is a program that aims to redirect defendants away from the criminal justice system and prevent a criminal record. This is often available for first-time offenders or in specific circumstances.

For comprehensive legal representation and advice regarding firearm offences, contact MK Law to discuss your case.

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Assault Charges

  • Aggravated Assault
  • Wilful Damage
  • Common Assault
  • Public Display of a Nazi Symbol or the Nazi Salute
  • Harassing a Witness
  • Recklessly Causing Serious Injury In Circumstances Of Gross Violence
  • Affray Charges In Victoria
  • Intentionally Causing Serious Injury in Circumstances of Gross Violence
  • Intentionally causing Serious Injury
  • Recklessly Causing Serious Injury
  • Intentionally Causing Injury
  • Administering Certain Substances
  • Threats to Kill and Assault Offences
  • Stalking
  • Negligently Causing Serious Injury
  • Extortion With Threat to Kill
  • Extortion, With Threats to Destroy and/or Endanger Property
  • Threatening to Prevent Arrest
  • Using a Firearm in the Commission of an Offence
  • Being Armed with Criminal Intent
  • Kidnapping
  • Robbery
  • Armed Robbery
  • Home Invasion
  • Aggravated Home Invasion
  • Arson
  • Criminal Damage
  • False Imprisonment
  • Public Nuisance
  • Riot
  • Rout Offence
  • Unlawful Assembly
  • Intentionally Causing a Very Serious Disease

What happens next:

After being charged with using a firearm in the commission of an offence, it is crucial to engage an experienced criminal defence lawyer promptly. The initial steps involve gathering evidence, preparing for a police interview, and deciding whether to plead guilty or not guilty.

If you plead not guilty, your lawyer may file pre-trial motions and prepare your defence strategy, which includes witness testimonies and evidence presentation. Attend all scheduled court appearances, as your lawyer will represent you throughout the trial process, which involves jury selection, opening statements, and closing arguments. After the jury deliberates, they will deliver a verdict, and if convicted, a sentencing hearing will determine the penalties.

Throughout this process, maintain open communication with your lawyer to navigate the complexities of the legal system effectively and understand your options for appeals or other post-conviction remedies.

Call 1800 130 120 today. 

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  • 2/212 Barkly Street, St Kilda Victoria, 3182 Australia
  • 1800 130 120
  • marcus@mklawfirm.com.au