Differences between state laws around Australia regarding imitation or replica handguns are creating legal problems for the courts, as well as for the purchasers, who are finding themselves on the wrong side of the law.

NSW man buys replica handgun on trip to Queensland

One of our clients recently found himself in legal trouble after briefly entering Queensland from NSW, and while there, purchasing a replica handgun. By appearance, this weapon was identical to a real handgun. Together with the imitation gun, a "Glock 18 Pistol Gel Blaster", he bought about 50 rounds of gel capsule ammunition.

When our client returned to NSW, he drove to a beach to go surfing with a friend. While he waited for her to arrive, he removed the replica handgun from its packaging and pointed it at the ocean, holding it outside the car's window.

He was subsequently spotted by a member of the public, who immediately called the police. The friend arrived and joined him in the car, where the client showed her the weapon and was "waving it around in the car", as the person on the phone to emergency services reported, while continuing to observe from a safe distance.

Possessing replica handguns creates danger for owners

Unfortunately for our client, the handgun that the replica imitates is the standard issue sidearm for the police in NSW, and as such, all police officers are familiar with it. It is probably not surprising therefore, that if they see a gun that looks like a Glock in the hands of a civilian, they would consider it in all likelihood to be an actual Glock.

In addition, as every police officer is aware, there is no safety catch on a Glock. When such handguns are used on a movie set, for example, a safety device indicating a replica is inserted up until use in an actual scene, when it is removed by a qualified armourer and then replaced immediately after filming stops.

What this means is that if someone is waving around what appears to be a Glock (without a safety device indicating a replica), it is fairly likely the police will shoot rather than waiting to be shot. As such, there is a very real and high potential for the injury or death of a person who is in possession of an imitation weapon.

Police respond to callout and assume handgun is real

In our client's situation, the police arrived on the scene, donning ballistic armour and securing the vehicle. Our client soon found himself lying face down on the ground with a real gun pointed at him. He was handcuffed and arrested, with the police removing the weapon and searching the vehicle, where they located the ammunition.

Our client was told that Tactical Response was almost called upon to handle the matter, which may have ended far worse for him. Nevertheless, it was made very clear to him that had he pointed the gun at the police, they were entitled and ready to fire, from a real Glock.

Bail refused as owner of imitation Glock fails to comprehend gravity of situation

It was noted by the police in the antecedents section of the facts sheet that "...[he] was not remorseful and struggled to understand the danger he had placed himself, the public and the police in". Following this, he was refused bail on the "show cause" pistol charge.

Fortunately for him, the time had passed for the afternoon truck to take those in custody to the Metropolitan Remand and Reception Centre (MRRC) in Silverwater, so he stayed in the police cells overnight.

Had he been transferred, his appearance the following morning would have been by audiovisual link, making it much more difficult for his lawyers to get the situation under control. In such circumstances, a release (bail) application may have been very much in doubt.

Keeping him at the police cells overnight meant that his legal representative could see him in person and advise him accordingly, ascertaining more information and obtaining the charge sheet and facts sheet. Referring to the replica handgun, he declared that "everyone in Queensland has one" and "they're legal there".

Inability to claim ignorance of law regarding replica handguns

As it turns out, our client's knowledge of Queensland law was an unfortunate point in court, as he could hardly claim ignorance of the law in NSW. It was pointed out to him there was a 14 year maximum penalty, and what the charges meant. (See section 7(1) of the NSW Firearms Act for possessing the pistol without a licence or permit and section 65(3) for possessing the ammunition.)

After advice, his instructions were to enter a plea of guilty and finalise it next morning after a night in custody in the police cells. There was no utility in an adjournment or a "not guilty" plea. The client had a short traffic record, but was on bail and part heard for an unrelated, non-violent matter.

Current laws regarding replica handguns in Australia

On a plea of guilty, the police prosecutor advised he would not want to be heard on sentence. He also agreed that legislation concerning replica handguns was different in each state and that the Commonwealth was allowing the importation of these items into Australia.

It was also noted that there is considerable political lobbying underway from paintball businesses, to allow replica handguns to be licensed to them for hire by the public within those businesses.

In the current climate, with Australia trying very hard to maintain its "gun-safe" reputation, it seems counter-intuitive to permit imitation guns, especially ones that replicate current automatic weapons that are used by our military and police.

As the magistrate pointed out, there would not have been any discussion of these points or the competing state laws in a situation like the one in this matter – in fact, if the pistol was seen in a heavy pedestrian traffic area and not a relatively quiet beach, something far more grim may have occurred.

Impact of a firearms offence conviction

The end result was that the magistrate imposed two Community Correction Orders of 12 months each, to be run concurrently, plus a fine for each offence. Our client had spent almost 24 hours in custody.

There have been a number of prosecutions recently involving these "imitation" guns, and all firearms offences are treated seriously. The situation seems to be exacerbated by social media, with Queenslanders apparently enthusiastically describing the fun they have with these guns. Obviously social media does not relay the information that these guns are illegal in other states.

As for our client, he now has firearms and ammunition offences convictions, which will affect any future travel plans and employment prospects. The onus will be on him to convince the embassy official or potential employer that "it was harmless fun" and "just a joke that went wrong".

There is very real collateral damage done to a person's character by receiving a conviction, and it can follow you for the rest of your life.

John Gooley

Criminal law

Stacks Collins Thompson