Custody of Offensive Implement in Public or at School

The offence of ‘Custody of offensive implement in public or at school’ is contained at Section 11B of the Summary Offences Act 1998. The maximum penalty for the offence is 2 years imprisonment and/or a Fine of $5,500.00

What is the Offence of Custody of Offensive Implement?

Section 11B of the Summary Offences Act 1998 makes it an offence for a person to have custody of an offensive implement in a public place or a school. 

The following acts constitute Custody of an Offensive Implement in a Public Place or School:

• Making a regular object into a ‘shiv’ and having it in your bag at the shops, 
• Having a sharp piece of scrap metal or large shard of glass at a school, 
• Sharpening the end of a stick or branch to make it into a sword or spear and carrying it with you at the park.

What Must Be Proven?

For a person to be found guilty of Custody of an Offensive Implement in Public Place or School the Prosecution must prove each of the following matters beyond a reasonable doubt:

• A person,
• Has in their custody, 
• An “offensive implement”, 
• In a “public place” or “school”,
• Without reasonable excuse. 

Definitions:

The Act defines an “offensive implement” to mean anything made or adapted for use for causing injury to a person, or anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property. 

The Act also defines “public place” and a “school” in its definition section. A “public place” means a place or part of a premises that is open to the public, or used by the public but does not include a school. 

A “school” is defined to mean a government/registered non-government school, school providing education at pre-school, infant, primary or secondary level, a place used for a of child-minding or similar purpose , the land and building occupied by or in connection with the conduct of such school but does not include any building occupied or solely used as residence or for purposes unconnected with conduct of school or place.   

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

This offence is a “summary offence” so will be finalized in the Local Court. 

Possible Defences

The following defences may be available for a Custody of Offensive Implement in Public Place or School charge:

• The item is not an “offensive implement”, 
• The person had the item in their custody but was not in a “public place” or “school”,
• The person did not have the item in their custody,
• The person has a reasonable excuse for having the offensive implement. 
• The person satisfies the Court that the custody of the offensive implement was done so with lawful authority. 

Common Questions

Will I receive a criminal conviction?

A conviction and criminal record for this offence is likely. 

In NSW, a Court can impose any of the following penalties for a custody of Offensive Implement charge.

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for Custody of an Offensive Implement might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of violence can completely rule out certain career paths such as teaching and a range of government employment options. Violent offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol?

Whether a person will be sentenced to full time imprisonment for the offence of Custody of Offensive Implement will heavily depend on the circumstances of their matter. Some factors that the Court will consider in determining the seriousness of the offence include the type of offensive implement possessed, the degree to which the offensive implement could cause injury to a person, the amount of people present in the public place or school when the offensive implement was possessed, the behaviour of the person in custody of the offensive implement and the person’s criminal record. As there is a 2-year imprisonment maximum penalty, a Gaol term is a possible sentencing outcome. 

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