Commission of an imprisonable offence with a firearm

Question 1

Commission of an imprisonable offence with a firearm

Act/Section/Penalty

Answer 1

CA61; S198B(1)(a);
10 years imprisonment

CA61; S198B(1)(b):
10 years imprisonment

Question 2

Commission of an imprisonable offence with a firearm - 198(B)(1)(a):

Elements

Answer 2

• *S198B(1)(a):**
  1. In committing any imprisonable offence
  2. Uses any firearm

Question 3

Commission of an imprisonable offence with a firearm - S198B(1)(b)

Elements:

Answer 3

• *S198B(1)(b):**
  1. While committing any imprisonable offence
  2. Has any firearm with him or her
  3. In circumstances that prima facie show an intention to use it in connection with that imprisonable offence

Question 4

Imprisonable offence

Answer 4

Any offence which is punishable by a term of imprisonment.

Question 5

Uses any firearm

(commission of an imprisonable offence with a firearm)

Answer 5

The term includes firing or presenting a firearm, or displaying it in a menacing manner, but may not extend to the use of a firearm as a club.

Question 6

Has with him

Answer 6

The offender must knowingly have the firearm with them - mere possession is insufficient.

R v Cox.

Question 7

Firearm

Answer 7

Arms Act 1983; Section 2

Firearm -

a) means anything from which any shot, bullet, missile, or other projectile can be discharged by force of explosive; and
b) includes -
i) anything that has been adapted so that it can be used to discharge a shot, bullet, missile, or other projectile by force of explosive; and
ii) anything which is not for the time being capable of discharging any shot, bullet, missile, or other projectile but which, by its completion or the replacement of any component, part or parts or the correction or repair of any defect or defects, would be a firearm within the meaning of paragraph (a) or subparagraph (i); and
iii) anything (being a firearm within the meaning of paragraph (a) or subparagraph (i)) which is for the time being dismantled or partially dismantled; and
iv) any specially dangerous airgun

Question 8

R v Cox

Answer 8

Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.

Application: Possession

Question 9

R v Manapouri

Answer 9

Two or more people can be charged in regards to a single firearm, that each ‘had with him’, if each had an appropriate degree of control over it.

Question 10

Mere possession not sufficient

Answer 10

There must be accompanying circumstances showing a prima facie intention to use the firearm in the commission of the imprisonable offence.

Question 11

Prima facie

Answer 11

‘At first appearance’.

Tuli v Police - “Prima facie circumstances are those which are sufficient to show or establish an intent in the absence of evidence to the contrary.”

Question 12

What definitions and/or case laws should be included in your discussion of the liability of

• Commission of an imprisonable offence with a firearm

Answer 12

Definition of intent: 2 specific types of intent; R v Collister;

Definition of imprisonable offence: any offence which is punishable by a term of imprisonment;

Definition of uses: includes firing or presenting but may not extend to the use of a firearm as a club;

Definition of firearm: AA83; S2;

Definition of has with him: the offender must knowingly have the firearm with them; R v Cox

Definition of prima facie: At first appearance; Tuli v Police - circumstances sufficient to show or establish an intent in the absence of evidence to the contrary