KEY TAKEAWAYS
To be allowed to possess and use an imitation firearm, you must have a firearms permit. The same penalties that apply to firearms also apply to imitation firearms if you don't have a licence or permit. The maximum penalty for possessing or using an imitation pistol or imitation prohibited firearm without a permit is 14 years imprisonment. The maximum penalty for possessing or using any other imitation firearm without a permit is 5 years imprisonment.
WHAT IS AN IMITATION FIREARM?
Imitation firearm is an object that substantially duplicates the appearance of a firearm but is not a firearm regardless of its colour, weight or composition or the presence or absence of any loveable parts, according to section 4D(3) Firearms Act.
CAN YOU GET A LICENCE OR PERMIT FOR IMITATION FIREARMS?
A firearms licence is not available for imitation firearms. However, a firearm permit can be issued for an imitation firearm to authorise the possession and use of it.
DO YOU HAVE TO REGISTER AN IMITATION FIREARM?
An imitation firearm is not required to be registered.
DO YOU HAVE TO OBTAIN A PERMIT TO ACQUIRE AN IMITATION FIREARM?
If you have a valid permit to have and use an imitation firearm, you do not need a permit to acquire an imitation firearm.
WHAT ABOUT IMITATION FIREARMS IMITATING PISTOLS OR PROHIBITED FIREARMS?
Any imitation firearm that imitates a pistol is considered to be a pistol (including a prohibited pistol), and any imitation firearm that imitates a prohibited firearm will be considered a prohibited firearm according to the law in NSW.
DEFENCE TO IMITATION FIREARMS CHARGES
A common defence to imitation firearm charges is if the imitation firearm is produced and identified as a children's toy, according to section 4D(4) Firearms Act.
EXAMPLE OF IMITATION FIREARMS DEFENCE CASE IN NSW
The case of Dagestan [2019] NSWCCA 248 involved the accused Mr Darestani charged with the offence of having plastic pistols (imitation firearms).
This case says that the time of possession of the imitation firearm is considered to be at the time of his arrest by police.
This meant that the prosecution must negate s4D(4) at time of possession. The prosecution must therefore exclude beyond reasonable doubt any reasonable possibility that the imitation firearm was produced and identified as a children's toy at the time of his arrest.
In short, identification of the object as a toy is confined to the time of possession, and past or future use of it is irrelevant.
The exception in s4D(4) refers to the circumstances in which the object is being used. This depends on how the identity of it has been ascertained or asserted.
Whether it's been identified as a children's toy requires consideration of matters intrinsic to the object, use and intention of the person using it, if it's being used at the time it's asserted to be in possession.
The onus is in the crown to prove that at the time the plastic pistols were found in possession, these were imitation pistols.
Was there anything in the accused's use of the plastic pistols at the time of possession which asserted them to be other than a toy?