Possess Graffiti Implement

In NSW there are a number of graffiti-related offences. A person can be charged if they carry an object with the intention of using it to graffiti property or a building. Such objects can include spray paint, a permanent marker, a pen or texta. The maximum penalty is 10 penalty units or imprisonment for 6 months.

Legislation

The offence of Possession of Graffiti Implement is contained in s 5 of the Graffiti Control Act and states:

1. A person must not have any graffiti implement in the person’s possession with the intention that it be used to commit an offence under section 4
2. Maximum penalty: 10 penalty units or imprisonment for 6 months.

What Actions Might Constitute Possession of Graffiti Implement?

Common examples of Possession of Graffiti Implement include:

• Purchasing spray paint to tag your name on the side of a building;
• Picking up a pen you find on the floor with the intention of using it to write on a nearby wall or seat;
• Borrowing a permanent marker off your friend to write on the side of a bus; or
• Taking a tin of paint out of your garage to paint a mural on the side of an old house.

What Must the Police Prove for Possession of Graffiti Implement?

To convict you of Possession of Graffiti Implement, the prosecution must prove each of the following matters beyond a reasonable doubt:

• You had a graffiti implement in your possession;
• You intended to use it to mark premises or property; and
• You did so without lawful excuse.

Possible Defences

The most common ways to defend this charge are:

• To argue that you did not intend to use it to mark premises or property;
• To prove that you had lawful authority; or
• To raise necessity or duress as the reason for your conduct.

Which Court Will Hear Your Matter?

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

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.