Possess a Graffiti Implement (NSW)

In New South Wales, there are a number of graffiti-related offences, including possessing a graffiti ‘implement’ with the intention to graffiti a premises or property. Graffiti implements can include items such as spray paint, a permanent marker, a pen or texta.  

The offence carries a maximum penalty of 10 penalty units and/or 6 months imprisonment.

What is the offence of Possessing a Graffiti Implement?

The offence of Possession of Graffiti Implement is contained in s 5 of the Graffiti Control Act 2008 (NSW) and states:

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

S 4 of the Graffiti Control Act 2008 (NSW) 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.

Graffiti implements are defined as meaning:

(a) spray paint,

(b) a marker pen,

(c) any implement designed or modified to produce a mark that is not readily removable by wiping or by use of water or detergent.

The following acts may constitute an offence of Possessing a Graffiti Implement:

• Carrying spray paint in your backpack while you get the train to an industrial area to spray paint with your friends; 
• Carrying a texta in your pocket so you can tag the windows of a bus; or
• Taking a tin of paint out of your garage to paint a mural on the side of an abandoned house.

What Must Be Proven?

For a person to be found guilty of Possessing a Graffiti Implement the Prosecution must prove each of the following matters beyond a reasonable doubt:

• You had an item in your possession;
• That item was a graffiti implement;
• You intended to use it to commit an offence under s 4 of the Act;
• You did so without lawful excuse.  

Which Court Will Hear the Matter?

This offence is a summary offence, which means the matter must be finalised in the Local Court. 

Possible Defences to Possessing a Graffiti Implement

The following defences may be available for a Possessing a Graffiti Implement charge:

• You were not in possession of an item (or not knowingly in possession);
• The item was not a graffiti implement;
• You did not intend to use the item to commit an offence under s 4 of the Act; or
• To raise duress or necessity as a defence.

Common Questions about Possessing a Graffiti Implement

Will I receive a criminal conviction?

Maybe. Where a person pleads guilty or is found guilty, a conviction and criminal record for this offence is possible (especially if the person has prior offences). However, it remains feasible to avoid a conviction. If a person was to plead not guilty and was acquitted, they would not receive a conviction. 

In NSW, a Court can impose any of the following penalties for this 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 a person does for a living. Some jobs require no criminal convictions, and a conviction might jeopardise a person’s employment or make it difficult to obtain visas for overseas travel. 

Will I go to Gaol for Possessing a Graffiti Implement?

Probably not. While a 6 month maximum penalty is available for this offence, it is a relatively low maximum penalty and people are rarely sentenced to Gaol. Furthermore, a sentence of imprisonment cannot be imposed unless the person has previously been convicted of the same offence or other offences under s 10A or 10B of the Summary Offences Act (now repealed). Whether a person will receive a Gaol sentence depends on many factors including whether they plead or are found guilty, the circumstances of the offence itself, any prior criminal history and the person’s own circumstances. 

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