Graffiti - Marking a Premise or Property

In NSW, you can be charged with Marking a Premises or Property if you make a mark on any building or property without the consent of the owner or a reasonable excuse. This offence carries a maximum penalty of 4 penalty units. 

The offence is aggravated if you mark the property using spray paint or permanent marker or if they use a similar item and the mark cannot easily be cleaned off. For offences involving circumstances of aggravation, the maximum penalty is 20 penalty units or imprisonment for 12 months.

What is Marking a Premises or Property?

The offence of Marking a Premises or Property is contained in s 4(1) 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.

The circumstances of aggravation are contained in s 4(6) 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, or
• if the premises is a place of worship.

The following acts constitute Marking a Premises or Property:

• Spray painting your ‘tag’, name, picture or art on the side of a building or train;
• Using a permanent marker 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 Be Proven?

For a person to be found guilty 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
• 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 which means it will be heard in the Local Court of NSW. 

Possible Defences to Marking a Premises or Property

The following defences may be available for a Marking a Premises or Property charge:

• That you had a “reasonable excuse”;
• That the marking was an accident;
• You had consent from the owner of the property.

Common Questions about Marking a Premises or Property

Will I receive a criminal conviction?

It is possible. In NSW, a court can impose any of the following penalties for a Marking a Premises or Property 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 offences might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for some offences can completely rule out certain career paths such as teaching and a range of government employment options. 

Will I go to Gaol for a Marking a Premises or Property charge?

Gaol is only an available penalty if the offence is committed in circumstances of aggravation. 

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