Police Non Use of Penalty Notices - The Loose Cannon
The NSW Firearms Regulation 2017 contained one development of considerable interest to shooters, and it was the tabulation of offences, outlined in Schedule 1 of the Regulations that could be dealt with by a Penalty Notice, not unlike the penalty notice issued for speeding offences but without points.
The penalty for breaching section 39(1) – the general requirement to ‘take all reasonable steps’ to secure a firearm is a maximum of 50 penalty units (i.e. $5,500) or two-years imprisonment or both for a pistol / prohibited weapon or 20 (i.e. $2,000) penalty units and or one-year imprisonment for any other.
Section 40 the familiar ‘locked receptacle or container’ provision has a penalty of 20 penalty units or 12 months.
The penalty unit system enables a penalty of $550 for a breach of s39 or $220 for a breach of s40 additionally does not involve a conviction, or forfeiture or destruction of a firearm.
This made a lot of sense, because storage offences are not all alike, and range in severity from situations where people make no effort to adequately store firearms to situations where there is a one-off breach of short duration, as a result of someone leaving a door unsecured because they were distracted by a telephone call.
This difference in severity of matter was noted by Deputy President Hennessy in Uzelac v Commissioner of Police, Ministry of Police  NSWADT 226.
And to guide others, she developed a useful test that considered:
- the reason for failing to store the firearm safely;
- the length of time the firearm was not stored safely;
- the potential real danger posed by failure to store the firearm safely;
- the person’s previous conduct in relation to storage of firearms and any related matter;
- the person’s understanding of the importance of safe storage and the likelihood that firearms will not be stored safely in the future; and
- the reason the person has a firearms licence, keeping in mind that firearms possession and use is a privilege that is conditional on the overriding need to ensure public safety.
She then stated:
"In relation to the first three considerations, if the breaches of the Act or Regulations are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety".
This is a logical approach to adopt, for whilst keeping firearms under lock and key is a legal requirement and a pious thing to do- and incidentally was the norm in my household well before 1996, few of the guns that lived under beds, or in cupboards, attics, ever found themselves involved in a tragic incident.
Compliant shooters are also not unlike everyone else in the community. In that accidents happen. It is part of being human. Should a person face an unreasonably harsh penalty when they normally do the right thing?
I can find little evidence of Police actually using the Penalty Notice system, indeed there is a lot of ignorance amongst Police that this system actually exists. Officers I have spoken to have never even actually seen a penalty notice form for this type of offence.
If someone has ever been issued with a penalty notice, perhaps they would like to post a note to this effect below or send it to me in private if they are more comfortable doing it that way.
I would hate to think that the reason line Police have not been taught about it, is that somewhere, in our vast bureaucracy there is someone who is ignoring a provision in the Regulations because Parliament disallowed a provision that would have enabled Police to determine that on the issue of such a notice a person was not a fit and proper person for a period of ten years.
Or because a penalty notice would deny Police easy gun crime conviction statistics.
I hope it is just my cynical mind working….
Perhaps the Commissioner needs to take active steps to allow badged officers not to waste time issuing Court process and taking people to Court instead of using a quick, cheap penalty notice system in the manner Parliament intended?
After all, it would take several hours to write up a Charge Sheet and have it approved internally, but only a matter of minutes to issue an Infringement Notice.
Certainly, a lot of the matters crossing my desk could have been more appropriately dealt with that way, without destroying an heirloom or in the case of two recent matters that saw individuals aged 75 year plus, with no criminal history and scarcely a traffic ticket to their name, leave Court with convictions.
National Firearms Lawyer
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Simon Munslow is a lawyer who has a lifelong interest in shooting, having acquired his first firearm at the age of nine, and has had an active interest in firearms law since writing a thesis on the topic over thirty years ago at University.
Simon Munslow practices extensively in Firearms Law matters throughout Australia.
He is a regular contributor to the Australian Sporting Shooter magazine’s website on Firearms law matters, has published articles on firearms reviews and firearms law, and occasionally is asked to comment in the broader media on firearms matters.
This article is written for general information only and does not constitute advice.
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