Graffiti - Marking a Premise or Property

In NSW there are a number of graffiti-related offences. A person can be charged if they make a mark on any building or property without the consent of the owner or a reasonable excuse. This offence is known as ‘Marking a Premises or Property’. They face a more serious penalty if they do so using spray paint or permanent marker or if they use a similar item and the mark cannot easily be cleaned off. The maximum penalty is 20 penalty units or imprisonment for 12 months.

The Offence of Marking a Premises or Property

The offence of Marking a Premises or Property is contained in s 4 of the Graffiti Control Act and states:

A person must not, without reasonable excuse (proof of which lies on the person), intentionally mark any premises or other property, unless the person has first obtained the consent of the following:

in relation to premises that are occupied-the occupier or person in charge of the premises,
in relation to premises that are unoccupied or other property-the owner or person in charge of the premises or property. Maximum penalty: 4 penalty units.

The Offence in Circumstances of Aggravation

Certain circumstances can ‘aggravate’ the offence of Marking a Premises or Property making it more serious. Such circumstances include using a ‘graffiti implement’ such as spray paint or a permanent marker or where the mark can’t be easily cleaned off. Where the offence is aggravated the maximum penalty increases to 20 penalty units or 12 months imprisonment.

The circumstances of aggravation are contained in s 4(3) of the Graffiti Control Act and state:

For the purposes of this section, a person commits an offence in “circumstances of aggravation” if the person intentionally marks the premises or other property:

by means of any graffiti implement, or
in such a manner that the mark is not readily removable by wiping or by the use of water or detergent.

What Actions Might Constitute Marking a Premises or Property?

Common examples of Marking a Premises or Property include:

Spray painting your ‘tag’, name, picture or art on the side of a building or train;
Using a Texta to write on the seat of a train or bus;
Finding a pen and scribbling on the back of a bathroom door;
Drawing a moustache on a person in a bus shelter advertisement; or
Writing your name in wet cement.

What Must the Police Prove for Marking a Premises or Property?

To convict you of Marking a Premises or Property, the prosecution must prove each of the following matters beyond a reasonable doubt:

You marked any premises or other property;
You intended to mark the premises or other property;
You did so without the consent of the person occupying or in charge of the premises or property; and
You had no reasonable or lawful excuse to do so.

Possible Defences

The most common ways to defend this charge are:

To maintain your innocence if you did not commit the act;
To argue that you did not mark any premises or property;
To argue that you did not intend to mark any premises or property;
To argue that you had the consent of the person occupying or in charge of the premises or property;
To argue that you did not use a graffiti implement and that the mark can easily be removed by water or detergent;
To prove that you had a reasonable excuse or lawful authority;
To prove that you only used chalk; or

Which Court Will Hear Your Matter?

The offence is a summary offence and can only be finalised in the Local Court.

Posting Bills

The offence of Posting Bills is contained in Section 6 of the Graffiti Control Act and states:

A person must not intentionally affix a placard or paper on any premises so that the placard or paper is within view from a public place, unless the person has first obtained the consent of:

The occupier (if the premises are occupied), or
The owner (if the premises are not occupied)

Maximum penalty: 4 penalty units

What Actions Might Constitute Posting Bills?

Putting up a concert poster on a shopping centre wall;
Sticking a sign advertising your apartment up on a fence;
Sticking a printout of your company’s logo onto a temporary wall surrounding a vacant block.