Possess Firearm Without Licence SA: Charges, Penalties and Defences
Unlicensed firearm possession in South Australia
A possess firearm without licence SA charge reaches much further than most people expect. You do not have to own the firearm, and you do not have to touch it, before the law treats it as yours. The category of the firearm then decides whether you are facing a fine or years of imprisonment. Every hour matters, so book a same-day free 30-minute consultation or call (08) 7094 2021 to speak with a senior criminal lawyer.
Unlicensed possession: key facts
| Issue | Position in South Australia |
|---|---|
| The charge | Possessing or using a firearm without a licence authorising it, or for a purpose the licence does not authorise, section 9 of the Firearms Act 2015 (SA). |
| Maximum penalty | $20,000 or 4 years for a category A or B firearm; $35,000 or 7 years for category C, D or H; $50,000 or 10 years for a prescribed firearm. Aggravated under section 9(7): $35,000 or 7 years, $50,000 or 10 years, $75,000 or 15 years. |
| Summary disposal | The prosecutor may proceed summarily unless the firearm is prescribed, which caps the maximum at $10,000 or 2 years (section 9(6)). |
| Which court | Magistrates Court for summary charges, and usually for minor indictable charges too. Otherwise a charge with a maximum above 5 years imprisonment is a major indictable offence for the District Court (Criminal Procedure Act 1921 (SA), section 5). |
| What the prosecution must prove | That the person possessed or used the item within the extended meaning in section 6, that it is a firearm of the category alleged, and that no licence authorised it. |
| The onus that shifts | Where possession rests on occupying or managing premises, or being in charge of a vehicle, where the firearm was found, it is for the person charged to prove, on the balance of probabilities, that they did not know and could not reasonably be expected to have known it was there, or that it was, or they believed on reasonable grounds that it was, in another person's lawful possession (section 6(3)). |
| Defences that actually run | The knowledge defences; the item is not a firearm or not the category alleged; a licence did authorise it; the aggravating element is not made out; the search was unlawful. The general defence in section 75 does not apply to a section 9 charge (section 75(2)(a)). |
| Typical outcome | From a penalty without a conviction at the lowest end to immediate imprisonment. The Court of Criminal Appeal has said that even simple possession will usually call for a custodial sentence, but a sentence of imprisonment can still be suspended where good reason exists and the offender is not a serious firearm offender. Every case turns on its facts. |
| Serious firearm offence | Includes an offence committed on bail subject to the statutory firearms condition, which every grant of bail carries unless it is varied (Bail Act 1985, section 11), or while a firearms prohibition order applies, or in the course of or for a purpose related to a serious drug offence. It also includes the use or carriage of a prescribed firearm, or of an unregistered category H firearm the person is not licensed to possess (Sentencing Act 2017, section 49). Imprisonment must be imposed and cannot be suspended without a declaration on sworn evidence (section 51), although home detention remains available. A presumption against bail applies (Bail Act 1985, section 10A). |
| Licence consequences | Every section 9 offence is a prescribed offence for licensing (Firearms Regulations 2017, Schedule 2 Part 4). A licence must not be granted within 5 years of a finding of guilt for one (section 15(5)), a licence held must be cancelled on a finding of guilt for one committed after 1 July 2017 (section 20(7)), and no new application can be made for 3 years after that cancellation (section 14(4)). The sentencing court can itself cancel or suspend a licence, disqualify the person or impose a firearms prohibition order (section 66). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
What is a possess firearm without licence SA charge?
In South Australia, section 9 of the Firearms Act 2015 (SA) (the Act) makes it an offence to possess a firearm without a licence authorising it, and to possess or use one for a purpose a licence does not authorise. The basic offence carries from $20,000 or 4 years imprisonment for a category A or B firearm up to $50,000 or 10 years for a prescribed firearm. Aggravated forms are higher.
An unlicensed firearm charge in SA is usually won or lost on one of three questions. The first is whether you possessed the firearm at all, because the Act defines possession far more widely than holding a gun. The second is the category, which sets the penalty tier. The third is whether the offence is charged in its aggravated form, which lifts the maximum by years.
This page works through all three, then what a charge does to your licence. It sits under our firearms offences in South Australia guide. Its figures are current to the Firearms Act 2015 (SA) as in force from 19 February 2026, the Firearms Regulations 2017 (SA) from 8 July 2021, the Sentencing Act 2017 (SA) from 16 February 2026 and the Bail Act 1985 (SA) from 16 February 2026.
On this page
- What counts as possession
- Which firearm categories the Act uses
- Penalties for unlicensed possession
- When the charge is aggravated
- Summary disposal
- How similar charges tend to play out
- How the courts sentence unlicensed possession
- Other charges laid with it
- How the charge is defended
- Your licence and future applications
- Case law in South Australia
- What to do now
- Frequently asked questions
What counts as possession under the Firearms Act?
Possession is defined in section 6 of the Act, and it is deliberately broad. It covers physical possession or control, having the firearm in someone else’s possession or control, having and exercising access to it, controlling access to it, and occupying or managing premises, or being in charge of a vehicle, where a firearm is found.
| How the Act treats possession | What that covers in practice |
|---|---|
| Physical possession or control | It is in your hands, or under your control without being in your hands |
| Having it in another person's possession or control | It sits with someone else, but is held for you |
| Having and exercising access to it | You can get to the firearm, and you do |
| Controlling access to it | You decide who can reach it, whether or not you go near it |
| Occupying or managing premises where it is found | Found at a house, shed or business you occupy, or have care, control or management of |
| Being in charge of a vehicle, vessel or aircraft where it is found | Found in a car, boat or aircraft you were in charge of |
The limbs of the definition of possession under section 6(2) of the Act.
A person who never picked the firearm up can still be charged because it was in the boot of the car they were driving. The courts read the premises and vehicle limbs widely. In R v Marafioti [2014] SASCFC 8, Kourakis CJ said at [23] that the deeming provision extends the common law idea of possession and favours a broad reading of “in charge of”, and at [25] that it creates a rebuttable presumption. He held at [31] that a person who voluntarily drives a vehicle is in charge of it. In R v Sandery [2013] SADC 38, Judge Tilmouth held at [25] that the premises limb is cast disjunctively, so proof of any one of occupying, care, control or management is enough, and that “control” is less demanding than possession at common law.
The limits are real but narrow. In R v Joyce [2014] SADC 125, a rented wine storage locker in a facility the accused did not own was held not to be “premises” ([35], [77] to [82]). The premises and vehicle limb also does not apply where the firearm was in someone else’s lawful possession, or the person believed on reasonable grounds that it was (section 6(3)(b)). A passenger is not automatically in possession of what is in the car either. In R v Neal [2017] SASCFC 44, a front seat passenger’s conviction over a shotgun wrapped in cloth beside his seat was set aside and an acquittal entered, because the evidence did not exclude the driver’s sole possession ([3], [10], [81]).
The deeming provision creates a presumption, and the presumption can be rebutted: Ciantar v Police [2011] SASC 150 at [22]. That is what the next section is about.
The knowledge defences in section 6(3)
Section 6(3) attaches knowledge-based defences to the premises and vehicle limb, and they carry the most weight where a charge rests on premises or a vehicle rather than on the firearm being in your hands. The order of proof matters. The prosecution proves possession within the extended meaning, that the item is a firearm of the category alleged, and that no licence authorised it. Once occupation, care, control or management of the premises is proved, the accused may rely on the statutory defence: R v Beedar [2016] SADC 159 at [16]. The defence must then be proved on the balance of probabilities; raising it is not enough: R v Fuller [2012] SASCFC 101 at [47] and [50], Beedar at [17], R v Khan (No 2) [2014] SADC 207 at [19], and under the current Act R v Thwaites [2022] SADC 50 at [15] and [16].
That makes what you knew, and what you could have known, a live evidentiary question. Who else had a key. Who else used the vehicle that week. Whether the firearm was visible or hidden. How long it had been there and who put it there.
Whether the prosecution must also prove that the accused knew the item was a firearm is an open question. Under the Firearms Act 1977 the Court of Criminal Appeal read the premises and vehicle presumption as not requiring that knowledge, and relied on that Act’s general defence to protect a person who did not know: Fuller at [71] to [74]. The current Act’s general defence in section 75(1) is in the same words, but it does not apply to a section 9 charge (section 75(2)(a)).
District Court judges have since divided. In Joyce, Judge Lovell read Fuller as dealing with the premises and vehicle presumption, and treated the other limbs as common law possession, which requires that the accused knowingly have custody of the item ([88] to [92]). In Khan (No 2) at [18], and in R v Hunt and Becirovic [2016] SADC 22 at [59], Judge Tilmouth proceeded on the basis that knowledge that the item was a firearm is required. Under the current Act, he said the same in R v Bridgland [2019] SADC 162 at [24]. In Thwaites at [13], the judge adopted that view even where possession rests on the vehicle presumption. In R v Lloyd [2022] SADC 89 at [79], the judge did not accept the reasoning in Bridgland and preferred Fuller, but decided the case on an inference that whoever possessed the firearm knew it was one. No appellate decision resolving the point under the current Act was located.
Because possession is defined this widely, what people say in a police interview often decides the case before a lawyer is involved. A casual concession that you knew the gun was in the house can convert a weak premises case into a strong one. Get advice before the interview, not after it.
Which firearm categories does the Act use?
Section 5 of the Act divides firearms into categories A, B, C, D and H, plus a separate class of prescribed firearms. The category decides which penalty tier applies to your charge, so identifying it correctly is one of the first things worth checking.
| Category | What the Act puts in it |
|---|---|
| A | Air guns, paint-ball firearms (including gel blasters), rim fire rifles that are not self-loading, shotguns that are not self-loading, pump action or lever action, and break action combinations of a shotgun and a rim fire rifle |
| B | Muzzle loaders other than handguns, revolving chamber rifles, centre fire rifles that are not self-loading, lever action shotguns holding 5 rounds or fewer, and other firearms outside categories A, C, D and H that are not prescribed |
| C | Self-loading rim fire rifles holding 10 rounds or fewer, and self-loading or pump action shotguns holding 5 rounds or fewer |
| D | Self-loading centre fire rifles, self-loading rim fire rifles holding more than 10 rounds, and self-loading, pump action or lever action shotguns holding more than 5 rounds |
| H | Handguns that are not prescribed firearms |
| Prescribed | Automatic firearms, military firearms designed to fire explosive projectiles, firearms designed to fire tear gas, nauseating substances or poison, firearms designed to look like other objects, and others declared by regulation |
Firearm categories under section 5 of the Act and regulation 8A of the Firearms Regulations 2017 (SA).
What the Act treats as a firearm at all
Section 4 defines a firearm as a device designed to fire bullets, shot or other projectiles by burning propellant or by compressed air or other compressed gas, or a device of a kind the regulations declare to be a firearm. It also picks up receivers, and a device that would be a firearm if in working order or assembled, whether or not it has been rendered temporarily or permanently unusable. Antique firearms are excluded.
Regulation 4 of the Firearms Regulations 2017 (SA) declares regulated imitation firearms and gel blasters to be firearms, and regulation 8A brings gel blasters within the definition of a paint-ball firearm, which is category A. A gel blaster less than 160 millimetres long overall is a prescribed firearm (regulation 7(1)(e)). An imitation is regulated only if it can be adapted to function as a firearm with a moderate exercise of effort and skill and is strong enough to sustain firing (regulation 4(2)), and it then takes the category of the firearm it closely resembles (regulation 9). Gel balls themselves are declared not to be ammunition by regulation 3A.
So a gel blaster bought online, a regulated imitation firearm, or a stripped receiver in a drawer can each attract a section 9 charge. The guide to imitation firearms and gel blasters covers the classification.
Holding a licence is not always an answer
Under section 12, a licence may authorise possession of a particular firearm, or firearms of a particular category, for a purpose authorised under the licence. Section 9 asks whether you held a licence authorising that firearm for that purpose, not whether you held a licence at all. Licence holders are therefore charged more often than you would think: the firearm sits outside the category the licence covers, or the licence lapsed, or it was cancelled or suspended under section 20 while the firearms stayed in the house.
What are the Firearms Act 2015 penalties for unlicensed possession?
Firearms Act 2015 penalties for unlicensed possession are tiered by the category of the firearm, and each tier has a basic form and an aggravated form. The basic offence runs from $20,000 or 4 years imprisonment up to $50,000 or 10 years. The aggravated offence runs from $35,000 or 7 years up to $75,000 or 15 years.
| Firearm category | Maximum penalty, basic offence | Maximum penalty, aggravated offence |
|---|---|---|
| Prescribed firearm | $50,000 or 10 years imprisonment | $75,000 or 15 years imprisonment |
| Category C, D or H | $35,000 or 7 years imprisonment | $50,000 or 10 years imprisonment |
| Category A or B (other firearms) | $20,000 or 4 years imprisonment | $35,000 or 7 years imprisonment |
Maximum penalties for possessing or using a firearm without a licence under section 9 of the Act, including the aggravated offence under section 9(7). Current to the Act as in force 19 February 2026.
These are maximum penalties, not starting points. They mark the ceiling the court cannot exceed, and the sentence is for the court on the facts before it. Under the 1977 Act’s possession provision, the Court of Criminal Appeal held that a penalty expressed as a fine or imprisonment allows one or the other, not both: R v Willingham (No 2) [2012] SASCFC 104 at [36]. Section 9 uses the same “or” form.
A firearm that turns out to be category C rather than category A moves the ceiling from 4 years to 7 years, and for a prescribed firearm the aggravated form adds 5 years again. That is why both the category and the aggravating allegation deserve attention on day one.
When is an unlicensed firearm charge aggravated?
Under section 9(7) of the Act, the offence is aggravated where the firearm was loaded (whether or not the person knew), was in the immediate vicinity of ammunition suitable for use in it, or was concealed about the person. It is also aggravated where it was committed in connection with, or at the same time as, conduct that would be a prescribed offence against the Controlled Substances Act 1984 (SA).
Loaded, or ammunition in the immediate vicinity
The loaded limb applies whether or not the person knew the firearm was loaded. That sits in stark contrast to the knowledge defences under section 6(3): knowledge can save you on possession and do nothing for you on aggravation. A firearm is taken to be loaded if there is a round in the breech, barrel or chamber, or in a magazine attached to it (section 9(8)(e)).
The ammunition limb turns on proximity, not on use. What counts as the immediate vicinity, and whether the ammunition was suitable for that firearm, are questions of evidence. Ammunition in a locked cabinet at the far end of a house is a different case from a magazine on the seat.
Possessing ammunition is also an offence in its own right under section 31 where you hold neither a licence for a firearm designed to fire it nor an ammunition permit. It has no aggravated form. The maximum is $10,000 or 2 years (section 31(12)), a person under 18 must not purchase or own ammunition (section 31(10), $5,000 or 1 year), and it is for the defendant to prove the licence or permit (section 31(3)). Holding more ammunition than reasonable needs for the next 12 months is a separate offence under section 34. Sentences of imprisonment for offences against section 9 and section 31(1) must be made cumulative unless special reasons exist (section 66A(1)).
Concealed about the person
This limb is about how the firearm was carried, not where it was found. Concealment allegations often rest on a short police observation or on body-worn footage, both worth obtaining and reviewing.
Connected with a drug offence
Where a firearm is found during a drug investigation, the aggravated form is commonly added. The limb requires the offence to be connected with, or contemporaneous with, a prescribed offence under the Controlled Substances Act 1984 (SA). The prescribed offences are the trafficking, manufacture, sale and supply offences, not simple possession (Firearms Regulations 2017, Schedule 2 Part 2). Our guide to cannabis offences in South Australia explains how the drug side is defended.
The gap between the basic and aggravated offence is measured in years, so the sooner an aggravating allegation is tested the better. Call (08) 7094 2021 or book a same-day free 30-minute consultation, and bring every document you were given.
Can the charge be dealt with summarily?
Where the firearm is not a prescribed firearm, the prosecutor can elect to deal with a section 9 charge summarily under section 9(6), and when that happens, the maximum falls to $10,000 or 2 years imprisonment. For a category C, D or H firearm, that is the difference between a ceiling of 7 years and a ceiling of 2 years.
| How the charge proceeds | Maximum penalty |
|---|---|
| Summary disposal, firearm not a prescribed firearm | $10,000 or 2 years imprisonment |
| Otherwise, category C, D or H firearm | $35,000 or 7 years imprisonment |
| Prescribed firearm (summary disposal not available) | $50,000 or 10 years imprisonment |
Summary disposal cap under section 9(6) compared with the basic maxima under section 9. Current to the Act as in force 19 February 2026.
How a charge proceeds is worth addressing early, because the category determines whether the summary route is available at all.
Firearms matters in the metropolitan area are usually listed in the Adelaide Magistrates Court. Talon Legal appears in Magistrates Courts across Adelaide and regional South Australia.
How similar charges tend to play out
Three illustrations of how section 6, section 9 and the sentencing cases combine on ordinary facts. They are not predictions. Outcome depends on the facts, the record, the plea and the court.
Lower range. A licence lapsed on renewal. During an unrelated visit police find one category A rifle in a locked safe, no ammunition nearby, no record. The charge is section 9 for a category A firearm, which the prosecutor may deal with summarily under section 9(6), capping the maximum at $10,000 or 2 years. A section 24 application to avoid a conviction is open on these facts, provided it meets the deterrence point the Court of Criminal Appeal insists on. The harder problem is the licence: a finding of guilt for a section 9 offence bars a licence for 5 years (section 15(5)), and avoiding a conviction may not avoid that bar.
Middle range. A category C shotgun and loose ammunition are found in a car the person was driving but does not own, while the person is on bail for an unrelated matter with the firearms condition. Possession is deemed under section 6 because the driver is in charge of the vehicle (Marafioti), and the ammunition in the immediate vicinity makes the charge aggravated under section 9(7). The bail condition makes it a serious firearm offence (Sentencing Act 2017, section 49(1)(e)(i)), and the person faces a presumption against bail on the new charge (Bail Act 1985, section 10A). Unless the prosecutor elects to proceed summarily, the matter goes to the District Court. If the person is convicted and becomes a serious firearm offender, imprisonment must be imposed and cannot be suspended unless the court makes a declaration on sworn evidence of exceptional circumstances (section 51), although home detention remains available (section 71; R v Grundy [2021] SASCA 4). The knowledge defence in section 6(3) is the case.
Upper range. A prescribed firearm found loaded in a bedroom during a drug search, with a quantity of a controlled drug held for sale in the same room. The charge is aggravated possession of a prescribed firearm, maximum $75,000 or 15 years, with the drug offence charged alongside it and the aggravation resting on both the loaded limb and the drug connection. Summary disposal is not available for a prescribed firearm, the matter is heard in the District Court, and immediate imprisonment is the ordinary outcome on a plea or a finding of guilt.
How do the courts sentence unlicensed possession?
The maximum penalties in the tables above are ceilings rather than expectations, and the sentence is for the court. But the starting point is set by the Court of Criminal Appeal, and it is custody. In R v Schloithe [2016] SASCFC 13, Gray J, with whom Kelly J agreed, said at [30] that general and personal deterrence and the protection of the community are of paramount importance in sentencing firearms offenders, and at [34] that even simple possession will usually call for a custodial sentence. In R v Capaldo [2015] SASCFC 56, Gray and Sulan JJ said at [52] that possession of a firearm is in itself a serious offence, and that only in the most exceptional circumstances would a penalty other than imprisonment be justified. They then resentenced a first offender to a suspended term of imprisonment ([61]). In R v Daniele [2014] SASCFC 22, Gray J, with whom Kourakis CJ and Peek J agreed, said at [26] that the need for general deterrence is particularly apparent in sentencing for these offences, and R v Gasmier [2011] SASCFC 43 at [19] makes the same point for unregistered firearms.
The need to protect the community can also mean a conviction is recorded for a first offender whose offence sits at the lowest end of the scale: Golubovic v Police [2014] SASC 79 at [15] and [26], where the firearm was a metallic imitation pistol. The seriousness of a particular possession offence varies with the provision breached and the circumstances: R v Fusco [2017] SASCFC 47 at [43].
The Sentencing Act 2017 (SA) contains a serious firearm offender regime, and section 49 defines serious firearm offences widely. For a possession charge they include an offence committed while on bail, a bond, home detention, parole or release on licence subject to a condition against possessing firearms, and every grant of bail carries that condition unless it is varied (Bail Act 1985, section 11). They also include possession while a firearms prohibition order applies, possession in the course of or for a purpose related to a serious drug offence, and the use or carriage of a prescribed firearm or of an unregistered category H firearm the person is not licensed to possess. In R v Simpson [2016] SASCFC 83 at [18] it was common ground that firearms offences committed on bail with the statutory condition were serious firearm offences. A person convicted of a serious firearm offence is a serious firearm offender, subject to the exceptions in section 50(2). Section 51 then requires the court to impose imprisonment, prevents the sentence from being suspended and provides that section 25 does not apply. The court can suspend the sentence only if it declares, on evidence given on oath, that the offender’s personal circumstances are so exceptional as to outweigh the paramount consideration of community safety and deterrence, and that suspension is appropriate (section 51(2)). A person taken into custody for a serious firearm offence also faces a presumption against bail, and bail is not granted unless special circumstances are established (Bail Act 1985 (SA), section 10A).
Under the Sentencing Act 2017, home detention is a separate order from suspension. The court can make a home detention order only after it imposes imprisonment and considers that the sentence should not be suspended (section 71(1)), and the exclusions in section 71(2) do not name serious firearm offences. In R v Grundy [2021] SASCA 4 the Court of Appeal concluded that section 70(1)(b)(ii)(D) does not prevent a home detention order when a serious firearm offender is sentenced for a serious firearm offence ([49]). It refused the Director of Public Prosecutions permission to appeal against a home detention order made for unlicensed possession of a category H firearm ([4], [12], [50] to [52]).
Outside the regime, a court can suspend a sentence of imprisonment where good reason exists (Sentencing Act 2017, section 96(1)). In R v O’Toole [2013] SASCFC 18, decided under the equivalent good reason test in the 1988 Act ([49], [50]), the Court of Criminal Appeal suspended a sentence for possessing a loaded prescribed firearm without a licence and related offences. The offences arose from untreated post traumatic stress disorder, and the weapons were obtained for perceived protection, not for any criminal purpose ([52], [53], [62]). Vanstone J would not have suspended it ([12]).
Whether a conviction is recorded is a separate question again. Section 24 of the Sentencing Act 2017 lets the court decline to record a conviction, but only where it proposes to impose a fine, community service or both, thinks the defendant unlikely to offend again, and finds good reason not to record one. Under the predecessor provision, in Golding v Police [2007] SASC 159 Kelly J set aside the penalty imposed for unlicensed possession and a storage offence, recorded no conviction and ordered the firearm forfeited ([22], [23]). No conviction was recorded on appeal in Forgione v Police [2008] SASC 54, a storage case ([26]). In Perre v Police [2007] SASC 347 at [23], Vanstone J said that recording a conviction is one way deterrence can be reflected, and that a penalty without a conviction for regulatory offences will generally be uncommon, so the application has to answer the deterrence point directly.
Avoiding a conviction may not protect a licence. The Firearms Act’s refusal and cancellation provisions turn on a finding of guilt. The rule that spent convictions are to be disregarded does not apply to a justice agency performing a function (Spent Convictions Act 2009 (SA), Schedule 1 clause 1), and the Registrar of Firearms is a justice agency (Spent Convictions Regulations 2026 (SA), regulation 6(a)). Our guide to avoiding a conviction being recorded in South Australia sets out how that argument is put.
Key points
- Custody is the starting point for possession of a firearm, including simple possession by a first offender, and the court works back from there. A sentence can still be suspended where good reason exists.
- Possession while on bail with the firearms condition is a serious firearm offence. A serious firearm offender must be sentenced to imprisonment that cannot be suspended without a declaration based on sworn evidence of exceptional circumstances, although home detention remains available under section 71.
- A section 24 outcome without conviction needs a proposed fine or community service, so it is not open where section 51 requires imprisonment, and the application has to meet the deterrence point directly.
What other charges come with an unlicensed firearm charge?
Unlicensed possession rarely arrives alone. The same seizure commonly generates further charges, each carrying its own maximum penalty on top of section 9. Those charges include possessing an unregistered firearm under section 27, acquisition offences under sections 22 and 23, and breach of a firearms prohibition order under section 45.
Possessing an unregistered firearm. Under section 27 this is a separate offence, with maximum penalties of $10,000 or 2 years for category A or B firearms, $20,000 or 4 years for category C, D or H, and $35,000 or 7 years for a prescribed firearm. Section 27(2) gives a defence where the firearm came into your possession lawfully not more than 14 days earlier and registration was not reasonably practicable. Our page on possessing an unregistered firearm works through it.
Acquisition offences. Acquiring a firearm requires a permit to acquire under section 23, and acquiring without it is caught by the trafficking provision in section 22. For a single firearm on a first offence the maxima run from $35,000 or 7 years up to $100,000 or 20 years. Our page on firearms trafficking and supply covers both sides of the provision.
Breach of a firearms prohibition order. Where an order applies to you, possessing a firearm also breaches section 45, which carries up to $75,000 or 15 years imprisonment. Our page on firearms prohibition orders explains how those orders are made and reviewed.
These charges are laid together and negotiated together. Getting the section 9 charge into its proper category and form usually improves the position on everything alongside it.
How is a possess firearm without licence charge defended?
To prove a section 9 charge, the prosecution has to establish that you possessed or used the item, that the item was a firearm within the meaning of the Act, and that no licence authorised it. Each element is a point of attack, and so is the category assigned to the firearm and the aggravated form of the charge.
Was this possession within section 6? If the case rests on premises or a vehicle, we test who else had access, who else had control, and what the evidence really establishes about your knowledge, with the section 6(3) defences and the onus in Fuller and Beedar in mind. Where the open knowledge question matters, we run it.
Is it a firearm, and is it the category alleged? Classification is a technical exercise about the mechanism, the calibre and the capacity of the item. Where it is wrong, the whole penalty tier moves with it.
Did a licence authorise it? Licence records, category coverage, authorised purposes, expiry dates and any variation, suspension or cancellation history are checked against the date on the information.
Is the aggravated form made out? Whether the firearm was loaded, what ammunition was where, whether anything was concealed, and how strong the drug allegation is are separate questions.
Was the search and seizure properly conducted? How the firearm was located, what was said and when, and how exhibits were handled are reviewed as a matter of course. Most seizure and search powers in section 57 need a suspicion on reasonable grounds, held at the time each power is used, and the firearms offences in South Australia guide sets out the cases that decide what that requires.
We will not promise you an outcome. The court’s discretion is real, and any lawyer who guarantees a result is selling something. What we can do is make sure the charge that reaches sentencing is correct in its category and form.
What does a charge do to your licence and any future application?
A firearms charge has consequences beyond the courtroom, because the Act uses your history to decide whether you can hold a licence at all. A finding of guilt can trigger mandatory refusal and cancellation, and a cancellation can bar a fresh application for years.
Under section 7, a person subject to a firearms prohibition order is not a fit and proper person (section 7(1)(b)). A person may also be taken not to be fit and proper if they have been found guilty of an offence under the Act, or of an offence involving actual or threatened violence, among other grounds (section 7(3)). Regard may be had to a person’s reputation, honesty and integrity, including that of their associates.
Under section 15, a licence must not be granted to an applicant who has been found guilty of a prescribed offence within the preceding 5 years (section 15(5)), and every section 9 offence is a prescribed offence (Firearms Regulations 2017, Schedule 2 Part 4). Under section 15(3), a person has no genuine reason to possess a firearm for the protection of themselves or another person, or for protecting property where the licence would not authorise that purpose, which disposes of the explanation people most often want to give.
Section 20(7) requires the Registrar to cancel a licence if the holder is found guilty of a prescribed offence committed after that subsection commenced on 1 July 2017. Under section 14, where the Registrar has cancelled a licence under section 20(6) or (7), no fresh application can be made for 3 years, subject to any exception in the regulations (section 14(4)).
The sentencing court has its own powers where a firearm was involved in the offence. On a finding of guilt it can order forfeiture, impose licence conditions, suspend or cancel a licence, disqualify the person from holding one, or make a firearms prohibition order (section 66(1)). Where the court suspends or cancels a licence, the person must surrender their firearms, ammunition, parts and sound moderators to the Registrar within 7 days (section 66(5)).
If a licence has already been refused, suspended or cancelled, there is a review pathway and it runs on short time limits. Our page on firearms licence appeals sets out the steps and the deadlines that apply.
Key points
- Every section 9 offence is a prescribed offence: a finding of guilt bars a licence for 5 years, and personal protection is never a reason for one.
- A Registrar’s cancellation under section 20(6) or (7) bars a new application for 3 years.
- An application to SACAT for review of a licence decision is due within 28 days of the decision, or within 28 days after written reasons were requested, and the Tribunal can extend time (section 47).
Unlicensed possession case law in South Australia
The authorities below are the ones that decide unlicensed possession matters in South Australia in practice. Most were decided under the Firearms Act 1977 (SA). Its premises and vehicle limb is in the same words as section 6(2)(d) of the current Act, and its knowledge defences are materially the same as section 6(3). Bridgland, Thwaites, Lloyd and Grundy were decided under the current legislation. Each is cited to AustLII, with the paragraphs where the point is made.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| R v Beedar [2016] SADC 159 | District Court | Defendant must establish the knowledge defence on the balance of probabilities | [16], [17] |
| R v Fuller [2012] SASCFC 101 | Court of Criminal Appeal | Raising the knowledge defence is not enough; under the 1977 Act the presumption did not require knowledge that the object was a firearm | [47], [50], [71] to [74] |
| R v Marafioti [2014] SASCFC 8 | Court of Criminal Appeal | "In charge of" read broadly; a rebuttable presumption; a voluntary driver is in charge | [23], [25], [31] |
| R v Sandery [2013] SADC 38 | District Court | Premises limb disjunctive; "control" less demanding than common law possession | [25] |
| R v Joyce [2014] SADC 125 | District Court | A rented storage locker is not "premises"; Fuller read as dealing with the premises and vehicle presumption | [77] to [82], [88] to [92] |
| R v Neal [2017] SASCFC 44 | Court of Criminal Appeal | Passenger's conviction set aside and an acquittal entered where the driver's sole possession was not excluded | [3], [10], [81] |
| Ciantar v Police [2011] SASC 150 | Supreme Court | The deeming provision creates a rebuttable presumption | [22] |
| R v Khan (No 2) [2014] SADC 207 | District Court | Proceeded on the basis that knowledge that the item is a firearm is required; onus on the defendant on the defence | [18], [19] |
| R v Hunt and Becirovic [2016] SADC 22 | District Court | Proceeded on the same basis, given the state of the authorities | [56], [59] |
| R v Bridgland [2019] SADC 162 | District Court | Under the current Act: knowledge that the item is a firearm is required | [24] |
| R v Thwaites [2022] SADC 50 | District Court | Under the current Act: the same view where possession rests on the vehicle presumption; onus on the defendant on the defence | [13], [15], [16] |
| R v Lloyd [2022] SADC 89 | District Court | Under the current Act: did not accept Bridgland and preferred Fuller, but decided the case on inferred knowledge | [79] |
| R v Schloithe [2016] SASCFC 13 | Court of Criminal Appeal | Deterrence and community protection paramount; even simple possession usually calls for custody | [30], [34] |
| R v Capaldo [2015] SASCFC 56 | Court of Criminal Appeal | Only the most exceptional circumstances justify a penalty other than imprisonment; first offender's sentence suspended | [52], [61] |
| R v Daniele [2014] SASCFC 22 | Court of Criminal Appeal | General deterrence particularly apparent in firearms sentencing | [25], [26] |
| R v Gasmier [2011] SASCFC 43 | Court of Criminal Appeal | Possessing unregistered firearms treated very seriously; imprisonment to be expected | [19] |
| Golubovic v Police [2014] SASC 79 | Supreme Court | Conviction recorded for a first offender over an imitation pistol, despite a lowest end submission | [15], [17], [18], [26] |
| R v Fusco [2017] SASCFC 47 | Court of Criminal Appeal | Seriousness of a firearms offence varies with the provision and the circumstances | [43] |
| R v Simpson [2016] SASCFC 83 | Court of Criminal Appeal | Common ground that offences on bail with the firearms condition were serious firearm offences | [18] |
| R v Grundy [2021] SASCA 4 | Court of Appeal | Home detention not precluded for a serious firearm offender; permission to appeal refused | [4], [12], [49] to [52] |
| R v O'Toole [2013] SASCFC 18 | Court of Criminal Appeal | Good reason to suspend where the offences arose from untreated PTSD and the weapons were held for perceived protection | [12], [49], [50], [52], [53], [62] |
| Golding v Police [2007] SASC 159 | Supreme Court | No conviction recorded for unlicensed possession; firearm still forfeited | [11], [22], [23] |
| Forgione v Police [2008] SASC 54 | Supreme Court | No conviction recorded for storage and licence condition breaches arising from a mistaken belief | [15], [24], [26] |
| Perre v Police [2007] SASC 347 | Supreme Court | Recording a conviction is one way deterrence is reflected; no conviction generally uncommon for regulatory offences | [23] |
| R v Willingham (No 2) [2012] SASCFC 104 | Court of Criminal Appeal | A fine or imprisonment are alternatives, not cumulative | [36] |
Case notes
R v Beedar [2016] SADC 159
Judge Soulio explained at [16] that once the prosecution proves occupation, or care, control or management, of the premises beyond reasonable doubt, the accused may rely on the statutory defence. At [17] he held that the accused must establish on the balance of probabilities that they did not know, and could not reasonably be expected to have known, that the firearm was there. Decided under the 1977 Act.
R v Fuller [2012] SASCFC 101
The Court of Criminal Appeal held at [47] and [50] that a defendant who relies on lack of knowledge to answer the deeming provision must prove the statutory defence on the balance of probabilities. Raising it is not enough. At [72] and [73] it held that the 1977 Act’s premises and vehicle presumption did not require knowledge that the object was a firearm, and at [71] to [74] it relied on that Act’s general defence to protect a person who did not know. Section 6(3) of the current Act also requires the person to prove the defence. The general defence does not apply to a section 9 charge under the current Act (section 75(2)(a)).
R v Marafioti [2014] SASCFC 8
Kourakis CJ, with whom Vanstone and Stanley JJ agreed, said at [23] that the deeming provision sits in a scheme that extends the common law concept of possession, which favours a broad reading of “in charge of”. At [25] he described it as creating a rebuttable presumption, and at [31] he held that a person who voluntarily drives a vehicle is in charge of it. Decided under the equivalent provision of the 1977 Act, now section 6(2)(d).
R v Sandery [2013] SADC 38
At [25] Judge Tilmouth held that the premises limb is cast disjunctively, so proof of any one of occupation, care, control or management suffices, and that “control” means exercising restraint or direction, a less demanding concept than possession at common law. Decided under the 1977 Act.
R v Joyce [2014] SADC 125
The accused rented a locker in a wine storage facility ([34], [35]). Judge Lovell held that the locker was not “premises” for the deeming provision, even on a broad reading ([77] to [82]). At [88] to [92] he read Fuller as dealing with the premises and vehicle presumption, and treated possession under the other limbs as common law possession, which requires that the accused knowingly have custody of the item. Decided under the 1977 Act.
R v Neal [2017] SASCFC 44
A front seat passenger was convicted of aggravated possession of a shotgun found wrapped in cloth between his seat and the centre console of a car the driver had hired ([1], [3], [10]). Kourakis CJ, with whom Nicholson J agreed, held that the verdict was unreasonable because the evidence did not exclude the possibility that the driver was in sole possession ([10]). The conviction was set aside and an acquittal entered ([81], [82]). Decided under the 1977 Act.
Ciantar v Police [2011] SASC 150
Gray J said at [22] that the deeming provisions create a rebuttable presumption, so that if the defendant was in charge of the car, a presumption arose that the handgun in it was in his possession. Decided under the 1977 Act.
R v Khan (No 2) [2014] SADC 207
At [18] Judge Tilmouth approached the matter on the basis that proof of knowledge that what was possessed was a firearm is required, as Judge Lovell had in Joyce. At [19] he held that a driver deemed to possess a firearm in the vehicle bears the onus of establishing the statutory defence on the balance of probabilities. Decided under the 1977 Act.
R v Hunt and Becirovic [2016] SADC 22
At [56] Judge Tilmouth said that, subject to statute, the prosecution must prove that an accused knew of the existence and nature of the firearm. At [59] he proceeded on the basis that knowledge that the item possessed was a firearm is required, given the state of the authorities. Decided under the 1977 Act.
R v Bridgland [2019] SADC 162
Decided under the current Act. At [24] Judge Tilmouth said that, as the authorities stood, knowledge that the item possessed was a firearm is required, and that Marafioti remained binding on the point.
R v Thwaites [2022] SADC 50
Decided under the current Act. At [13] the judge said that where an accused in charge of a vehicle is deemed under section 6(2) to possess a firearm in it, the prosecution must still prove that the accused knew the item was a firearm, quoting Bridgland. At [15] and [16] the judge set out the section 6(3) defences and placed the onus of proving them on the accused, on the balance of probabilities.
R v Lloyd [2022] SADC 89
Decided under the current Act. At [79] Judge Heffernan did not accept the reasoning in Bridgland and preferred Fuller, but decided the case on an inference that whoever possessed the firearm knew it was a firearm, so that view was not necessary to the result.
R v Schloithe [2016] SASCFC 13
A supply case: the offender had supplied 29 firearms to people not authorised to acquire them ([35]). Gray J, with whom Kelly J agreed, said at [30] that general and personal deterrence and the protection of the community are of paramount importance in sentencing firearms offenders. At [34] he said that since the 2008 amendments to the 1977 Act the court has consistently emphasised severe penalties, so that even simple possession will usually call for a custodial sentence. Permission to appeal was granted and the appeal dismissed ([37], [38]); Blue J would have allowed it ([147]).
R v Capaldo [2015] SASCFC 56
The appellant had pleaded guilty at her first appearance to aggravated possession of a loaded class H firearm without a licence, and had no prior convictions ([2], [54]). Gray and Sulan JJ said at [52] that possession of a firearm is in itself a serious offence and that only in the most exceptional circumstances would a penalty other than imprisonment be justified. They allowed the appeal and resentenced her to 17 months imprisonment, suspended on a supervised good behaviour bond ([61]). Kelly J agreed that the appeal should be allowed ([71]). Decided under the 1977 Act.
R v Daniele [2014] SASCFC 22
Gray J, with whom Kourakis CJ and Peek J agreed, said at [25] that possession of a firearm is a privilege and a serious responsibility, and that the overriding policy of the legislation is to protect the public. At [26] he said that the need for general deterrence is particularly apparent in sentencing for offences of this kind. The appeal was dismissed ([1], [28], [29]). Decided under the 1977 Act.
R v Gasmier [2011] SASCFC 43
At [19] the Court of Criminal Appeal said that the maximum penalties for possessing unregistered firearms that are unsecured reflect the seriousness of that offending. It added that courts must make it clear to those who possess unregistered firearms that the offending will be treated very seriously and that sentences of imprisonment will be imposed. Decided under the 1977 Act.
Golubovic v Police [2014] SASC 79
The firearm was a full sized metallic imitation of a semi-automatic pistol ([18]). Kelly J held at [15] that the magistrate had to give paramount consideration to general and personal deterrence, although the man had no prior convictions. At [26] he held that this was not a case for no conviction, despite the submission noted at [17] that the offending was at the lowest end of the scale, and he dismissed the appeal ([27]). Decided under the 1977 Act.
R v Fusco [2017] SASCFC 47
Peek J, with whom Blue and Doyle JJ agreed, observed at [43] that “possession of a firearm” is an offence when a particular statutory or regulatory provision is breached, and that its seriousness varies with the particular offence and the circumstances of the case.
R v Simpson [2016] SASCFC 83
At [18] the Court of Criminal Appeal recorded that it was common ground that the appellant’s firearms offences were serious firearm offences, because he committed them while on bail subject to the statutory condition against possessing firearms. The definition was then in section 20AA(1)(e) of the 1988 Act. The current equivalent is section 49(1)(e)(i) of the Sentencing Act 2017.
R v Grundy [2021] SASCA 4
Decided under the current Acts. After a trial, the respondent was found guilty of possessing a category H firearm without a licence, a serious firearm offence ([4]), and the sentencing judge ordered that his 9 month sentence be served on home detention ([3], [5], [12]). Doyle JA, with whom Kelly P and Bleby JA agreed, concluded that section 70(1)(b)(ii)(D) of the Sentencing Act 2017 did not preclude a home detention order when sentencing a serious firearm offender for a serious firearm offence ([49]). The Court refused the Director of Public Prosecutions permission to appeal ([50] to [52]).
R v O'Toole [2013] SASCFC 18
The offender pleaded guilty to possessing a loaded prescribed firearm without a licence and related offences ([3]). Peek J, with whom Sulan J agreed, found good reason to suspend the sentence under the general suspension power in the 1988 Act ([49], [50], [56]). The offences arose from the offender’s untreated post traumatic stress disorder, and the weapons were obtained for perceived protection, not for any criminal purpose ([52], [53]). The appeal was allowed and the sentence suspended on a supervised bond ([62]). Vanstone J would not have suspended it ([12]).
Golding v Police [2007] SASC 159
Kelly J held at [11] that a conviction did not have to be recorded before forfeiture could be ordered. He allowed an appeal by a man who had pleaded guilty to possessing a firearm without a licence and failing to secure it, set aside the penalty, recorded no conviction and ordered the firearm forfeited ([22], [23]). Decided under the 1977 Act and the predecessor to section 24 of the Sentencing Act 2017.
Forgione v Police [2008] SASC 54
The offences were failing to secure a firearm and ammunition and two breaches of licence conditions, by a man who had held a firearms licence for 40 years and had no prior convictions ([5], [18]). Kelly J said at [15] that the power not to record a conviction has limited application to regulatory offences, but that it can apply to breaches of the firearms regulations. The breaches came from a mistaken belief that his storage method was correct, not from blatant or careless disregard ([24]). Kelly J set the sentence aside and recorded no conviction, leaving the fine in place ([26]). Decided under the 1977 Act and the predecessor to section 24 of the Sentencing Act 2017.
Perre v Police [2007] SASC 347
The appeal was against the penalty for two breaches of the firearms regulations then in force ([1]). Vanstone J said at [23] that general and personal deterrence is a paramount consideration in sentencing for regulatory offences. Recording a conviction is one way deterrence can be reflected, and a penalty without a conviction for such offences will generally be uncommon. The appeal was dismissed ([31]).
R v Willingham (No 2) [2012] SASCFC 104
At [36] the Court of Criminal Appeal held that the penalties in the 1977 Act’s possession provision, expressed as a fine or imprisonment, could only be imposed in the alternative. It contrasted the many South Australian provisions that say “or both”. Section 9 of the current Act uses the same “or” form.
What should you do now?
Collect every document you were given when you were charged, write down what happened while it is fresh, and get advice before any interview. The three questions that decide these matters, possession, category and aggravation, are easier to run early than to unpick afterwards.
We act for people charged with firearms offences, and our wider criminal defence practice covers the drug, violence and dishonesty charges often laid alongside them. Fees and the likely process are discussed with you upfront.
If you are facing a firearm possession charge in Adelaide, do not wait for the first court date. Every hour matters: book your Free Consultation online, or call (08) 7094 2021 to speak with a senior criminal lawyer.
Frequently asked questions
What are the penalties for possessing a firearm without a licence in SA?
Maximum penalties depend on the category. The basic offence under section 9 carries up to $20,000 or 4 years imprisonment for a category A or B firearm, $35,000 or 7 years for category C, D or H, and $50,000 or 10 years for a prescribed firearm. Aggravated forms are higher again, and where the firearm is not prescribed the prosecutor can elect to deal with the charge summarily, with the maximum capped at $10,000 or 2 years.
Can I be charged if the firearm was not mine?
Yes. Ownership is not the test. Section 6 of the Firearms Act 2015 (SA) treats a person as being in possession if they have physical possession or control of a firearm, have it in another person’s possession or control, have and exercise access to it, or control who gets access. Where the prosecution proves that the person occupied or managed the premises, or was in charge of the vehicle, where the firearm was found, it is for that person to prove on the balance of probabilities that they did not know, and could not reasonably be expected to have known, that it was there, or that it was, or they believed on reasonable grounds that it was, in someone else’s lawful possession.
Can I be charged if a firearm was found in my car?
You can be. Section 6 extends possession to a person in charge of a vehicle where a firearm is found, and in R v Marafioti [2014] SASCFC 8 at [31] the Court of Criminal Appeal held that a person who voluntarily drives a vehicle is in charge of it. The limb is subject to the knowledge defences in section 6(3), so who else used the car, whether the firearm was visible, and how long it had been there become the evidence that decides the case.
Is a gel blaster a firearm in South Australia?
Yes. Regulation 4(1)(b) of the Firearms Regulations 2017 (SA) declares gel blasters to be firearms, and regulation 8A makes them paint-ball firearms, which are category A unless prescribed; one less than 160 millimetres long overall is a prescribed firearm (regulation 7(1)(e)). Possessing a category A gel blaster without a licence authorising it can be charged under section 9, with a maximum of $20,000 or 4 years imprisonment.
What makes an unlicensed firearm charge aggravated?
Section 9(7) sets out the aggravated forms. The offence is aggravated if the firearm was loaded, whether or not the person knew, or was in the immediate vicinity of suitable ammunition, or was concealed about the person, or the offence was connected with a prescribed drug offence such as trafficking. Aggravation lifts the maximum by years.
What is the difference between an unlicensed firearm charge and an unregistered firearm charge?
They are separate offences. Section 9 asks whether a licence authorised the person to possess that firearm. Section 27 asks whether the firearm itself was registered. Both are commonly charged from the same seizure, they carry different maximum penalties, and section 27 has its own 14-day defence for recently acquired firearms.
Will I go to jail for a firearm possession charge in Adelaide?
Imprisonment is the usual starting point, but not every case ends in custody. The Court of Criminal Appeal has said that even simple possession will usually call for a custodial sentence, and a sentence of imprisonment can still be suspended where good reason exists. Where the charge is a serious firearm offence, including possession while on bail with the firearms condition, imprisonment must be imposed and cannot be suspended unless the court makes a declaration based on sworn evidence of exceptional circumstances. Home detention remains available: R v Grundy [2021] SASCA 4. The category, the aggravated form, how the firearm came to be in the person’s possession and their history all bear on the outcome.
What happens if police ask to interview me about a firearm?
Speak to a lawyer before the interview, not afterwards. Under section 55 of the Firearms Act 2015 (SA), police can require a person they suspect on reasonable grounds knows something relevant to the Act’s administration or enforcement to answer questions, and refusing without reasonable excuse is itself an offence carrying up to $20,000 or 4 years. An owner asked where a firearm is, or who has had it, cannot refuse on the ground of self-incrimination, but the answer cannot be used in evidence except in proceedings under section 55 (section 55(7)). Because possession under section 6 covers access, control and occupancy, answers about who kept the firearm, who could reach it and how long it had been there go straight to the elements the prosecution must prove. The police powers section of the firearms offences guide explains how section 55 works. Call (08) 7094 2021 first.
Do I need a lawyer for an unlicensed firearm charge?
It is worth getting advice on any firearms charge, because the result moves on technical questions most people cannot assess alone: whether the item is the category alleged, whether the possession limb is made out, whether the aggravated form is available, and how the charge proceeds. Each changes the maximum penalty.
South Australian courts we attend for firearms matters
We appear in every metropolitan and regional Magistrates Court, and in the District Court and Supreme Court for firearms matters that go there.
Courts we attend
Book a same-day free 30-minute consultation or call (08) 7094 2021.
Related firearms guides
Related guides
- Firearms offences in South Australia
- Unregistered firearm offences
- Firearms prohibition orders
- Firearm storage and code of practice offences
- Firearms trafficking and supply
- Firearms licence refusals, cancellations and appeals
- Imitation firearms and gel blasters
- Knife and prohibited weapon offences
- Cannabis offences in South Australia
- Avoiding a conviction in South Australia
- Criminal Defence