Violence - Commission of Impr Offence with a Firearm Flashcards
What are the elements of s198B(1)(a) Crimes Act 1961?
Commission of an Imprissonable Offence with a Firearm
What is the Penalty
Answer:
- In committing any imprisonable offence
- Uses a firearm
Answer:
Max 10 years imprisonment
Define imprisonable offence as per s5 CPA 2011?
Answer:
In the case of an individual, an offence punishable by imprisonment for life or by a term of imprisonment.
Imprisonable offence - s5 Criminal Procedure Act 2011
Under s198B(1)(a) What is the definition of “uses”
Answer:
Has a narrower meaning than 198A and 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.
To satisfy the first element what must the firearm be used in the commission of?
Answer:
It must be in the commission of an imprisonable offence
What is the definition of a firearm?
Answer:
Firearm and airgun are defined by section 2 Arms Act 1983
The primary difference being that a firearm acts by force of explosive and an airgun acts by force of compressed air or gas.
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
In the definition of firearm what are the main references identifying a firearm?
Answer:
Means anything from which any shot, bullet, missile or other projectile can be discharged by force of explosive; and includes
- Anything that has been adapted
- Anything which is not for the time being capable
but which by its completion
- or the replacement of any component
- repair of any defect
- would be a firearm
- Anything dismantled or partially dismantled and
- Any specially dangerous airgun
What evidence is required relating to the defendant’s knowledge of the firearm?
Answer:
The offender must knowingly have a firearm with them - mere possession is insufficient
There must be evidence that the defendant not only had possession in the sense that he or she knowingly had custody or control of the firearm but also that it was at the time available and at hand for him or her to use while committing an imprisonalbe offence
Refer to R v Cox for possession
What is possession?
Answer:
Two elements of possession. A mental element and a physical element.
Actual and potential possession
Actual arises where the thing in question is in a person’s physical custody or control.
Potential arises where the person has a potential to have the thing in question in their control
Is mere possession of the firearm sufficient?
Answer:
No. Mere possession is not sufficient; there must be accompanying circumstances showing a prima facie intention to use the firearm in the commission of the imprisonable offence.
What is the definition of a prohibited firearm?
Answer:
2A - Meaning of prohibited firearm
(1)
In this Act, unless the context otherwise requires, prohibited firearm—
(a)
means any of the following firearms:
(i)
a semi-automatic firearm, other than—
(A)
a specified semi-automatic firearm:
(B)
a semi-automatic shotgun with a non-detachable tubular magazine or magazines that are capable of holding no more than 5 cartridges commensurate with that firearm’s chamber size:
(C)
a small semi-automatic pistol:
(D)
a semi-automatic pistol (not being a small semi-automatic pistol) in the possession or under the control of a person referred to in subsection (3):
(ii)
a pump-action shotgun that is capable of being used with a detachable magazine:
(iii)
a pump-action shotgun that has a non-detachable tubular magazine or magazines that are capable of holding more than 5 cartridges commensurate with that firearm’s chamber size:
(iv)
a centrefire pump-action rifle that is capable of being used with a detachable magazine:
(v)
a centrefire pump-action rifle that has 1 or more non-detachable magazines (tubular or otherwise) that are capable of holding more than 10 cartridges commensurate with that firearm’s chamber size; and
(b)
includes any other firearm declared by Order in Council made under section 74A to be a prohibited firearm for the purposes of this Act.
(2)
In subsection (1)(a)(i)(A), specified semi-automatic firearm means a semi-automatic firearm—
(a)
that is capable of firing only 0.22 calibre or lower rimfire cartridges; and
(b)
that has a magazine, whether or not detachable or otherwise externally fed, that is capable of holding no more than 10 cartridges commensurate with the firearm’s chamber size; and
(c)
that does not have a lower receiver that is able to be attached to a centrefire upper receiver so as to result in a firearm that is able to function.
What is a pistol?
Answer:
s2 Arms Act 1983
pistol means a firearm (other than a prohibited firearm or restricted weapon) that is designed or adapted to be held and fired with 1 hand, and includes any firearm (other than a prohibited firearm or restricted weapon) that is less than 762 millimetres in length
What is a restricted weapon?
Answer:
restricted weapon means any weapon, whether a firearm or not, declared by the Governor-General, by Order in Council made under section 4, to be a restricted weapon
What is a Specially dangerous airgun?
Answer:
specially dangerous airgun means any airgun declared by the Governor-General, by Order in Council made under section 4, to be a specially dangerous airgun
What is a Specified Pre-charged pneumatic air rifle?
Answer:
Clause 1A Arms Order 1984
Specified pre-charged pneumatic air rifles means pre-charged pneumatic air rifles that are not for use in airsoft or paintball sports.
What is does s66 Arms Act 1983 relate to?
Answer:
Occupier of premises or driver of vehicle deemed to be in possession of firearms airgun, pistol, imitation firearm, restricted weapon or explosive found therein
Every person in occupation of any land, building or the driver of any vehicle on which any firearm, airgun, pistol, ….or explosive shall be deemed to be in possession of that firearm, airgun….etc unless he proves that it was not his property and that it was in the possession of some other person.
