A Newcastle teenager has been charged with a firearms offence for carrying what many mistakenly believe is not – or at least should not be considered – a firearm at all: a gel blaster.
The incident
At around 2:30am on Saturday, 1 June 2024 police received multiple reports of a man wielding a firearm outside King Street Hotel in Newcastle.
Officers arrived some time thereafter to find the 19-year-old man carrying a black gel blaster.
The young man was arrested and conveyed to Newcastle Police Station, where he was charged with unauthorised possession or use of a firearm, failure to leave premises and armed with intent to commit an indictable offence.
He was refused bail at the police station and remanded in custody to face a bail application in Newcastle Local Court.
And this isn't the first time that someone in Australia has been charged with a crime for carrying a gel blaster gun.
Other cases
This is certainly not the first time a person has been charged with a firearms offence over the possession of a gel blaster.
In October 2020, a man sentenced in the District Court of New South Wales to 14 months in prison after he pleaded guilty to multiple offences including unauthorised possession or use of a firearm and supplying a prohibited drug after police entered his residence over an unrelated matter and located a several illegal items, including a ‘somewhat plastic looking' gel blaster in the form of a ‘semiautomatic weapon', a slingshot and 4.39 grams of methylamphetamines.
And in May 2022, the same court sentenced a man to six years in prison
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for armed robbery with an offensive weapon and unauthorised possession of a firearm for carrying a gel blaster during a violent offence.
Similarly, in Canberra, a teenager was charged with pointing a gel blaster at a security guard and taken to the ACT Children's Court for sentencing.
Gel blasters are not meant to be ‘toy guns' or used for play. These serious weapons have long-term consequences that many Australians may not know about.
Summary Of Laws Across Australian Jurisdictions
Understanding the laws across all Australian jurisdictions is key to knowing the charges for possessing or using a gel blaster gun in each state.
New South Wales Laws
The https://www.sydneycriminallawyers.com.au/criminal/legislation/firearms-act/
regulates the licensing and registration of firearms in New South Wales, as well as prescribes offences for their unlawful possession and use.
Possessing or using gel blaster or BB gun without a licence or permit is an offence under section 7A of the Act which carries a maximum penalty of 5 years in prison.
Section 4 of the Act provides a ‘firearm' definition, which includes guns or other weapons capable of propelling a projectile using an explosive. This definition encompasses BB guns and gel blasters, whose firing mechanisms use compressed air to propel projectiles.
Victorian Laws
Possessing or selling a gel blaster without a permit is prohibited in Victoria. The maximum punishment for possession and distribution is 2 years imprisonment, or 10 years for individuals with prior criminal convictions.
This legislation was enacted due to law enforcement reports linking gel blasters to various criminal activities such as home invasions, armed robberies, sieges, assaults, and drive-by shootings.
Queensland Laws
There are no legal restrictions on possessing gel blasters in Queensland.
In fact, the sunshine state is the only jurisdiction where possessing a gel blaster without a permit is not prohibited, as these items are classified as toys under the law. And while importing into Queensland is not prohibited per se, purchasing one in a state where it is unlawful and then bringing into Queensland is illegal.
Recently, Queensland has implemented stricter laws requiring individuals to have a “reasonable excuse” to carry a gel blaster in public.
Australian Capital Territory
Possessing a gel blaster or air-soft guns without a permit is illegal in the Australian Capital Territory, under sections 42 and 43 of the territory's Firearms Act of 1996.
These offences can result in a maximum of 10 years' imprisonment.
Plus, selling gel blasters in ACT (Section 185) or storing gel blasters is illegal.
Western Australia
Gel blasters are considered banned under the Weapons Act. People possessing gel blasters can face up to 3 years imprisonment or a fine of <$36,000.
Northern Territory
Possessing a gel blaster without authorisation is an offence under the Northern Territory Firearms Act.
It is illegal for residents to possess these firearms – a person who does so could suffer the maximum penalty of imprisonment for up to 2 years for a Category A firearm or up to 12 months imprisonment for a Category B firearm.
Pleading Not Guilty in New South Wales
In order to establish the offence of unauthorised possession or use of a gel blaster in New South Wales, the prosecution must prove beyond a reasonable doubt that:
- You possessed a gel blaster, and
- You were not authorised to do so by a licence or permit.
You are entitled to a not guilty verdict if the prosecution is unable to discharge this onus.
Section 4A makes clear that possession includes where the item is in or on any premises you own, lease or occupy, or in your care, control or management, unless you satisfy the court that:
- It was placed in or on, or brought into or onto, the premises by or on behalf of a person who was authorised to do so, or
- You did not know and could not reasonably be expected to have known that it was in or on the premises, or
- The evidence otherwise establishes that you were not in possession of the firearm.
‘Premises' means any place, vehicle, vessel or aircraft.
Section 4 defines a ‘firearm' as:
A gun, or other weapon, that is or was capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include a paintball marker.
Section 4D makes clear that it includes an ‘imitation firearm' which is an object that, regardless of its colour, weight or composition, or the presence or absence of any moveable parts, substantially duplicates in appearance a firearm, but is not a firearm.
This does not include an object produced and identified as a children's toy.
Legal Defences
You may also rely on a legal defence against the charge, such as duress, necessity, self defence, mental illness or automatism. In the event you are able to raise evidence of a legal defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply.
You are entitled to a not guilty verdict if the prosecution is unable to do this.
Pleading Guilty in New South Wales
A person who pleads guilty to unauthorised use or possession of a gel blaster in New South Wales faces a maximum penalty of 5 years in prison if the case is committed to the District Court, or 2 years if it remains in the Local Court.
However, it is important to be aware these are the maximum penalties and a magistrate (if the case remains in the Local Court) or judge (if it is referred to the District Court) may impose any of a range of penalties, including:
- A Section 10 Dismissal.
- Conditional Release Order without a conviction.
- Monetary fine.
- Conditional Release Order with a conviction.
- Community Correction Order.
- An Intensive Correction Order.
- Prison time, which is the last resort.
The court will consider a range of factors when determining the appropriate penalty in any given case, including the seriousness of the conduct itself as well as a person's criminal history (if any), any evidence of remorse and the likelihood of reoffending.
Preparing character references and a letter of apology to the court, as well as undertaking programs or courses to address any underlying issues can assist in reducing the penalty that may otherwise have applied.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.