Law and Penalties for Damaging or Defacing Trains and Train Stations in NSW

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By Poppy Morandin and Jimmy Singh.

A 35-year-old council worker has been charged following an extensive investigation into instances of malicious damage at train stations across Sydney.

The Police Transport Command Target Action Group begun inquiries in December 2019 after instances of graffiti occurred at multiple stations including Kingsgrove, Port Kembla, Blacktown, and Eveleigh.

They allege that Daniel Mills has been involved in numerous instances between December 2019 and May 2020 where trains and stations have been defaced with his signature tag “Sire”.

His ‘works’ have allegedly left a $30,312 cleaning bill for the taxpayer.

After arrest at his home in Newtown, he was taken to Newtown Police Station where he was charge with five counts of destroy/damage property in company, three counts of go onto or into or remain on or in running lines, and enter enclosed land not prescribed premises without lawful excuse.

He has been granted conditional bail and will next appear at Downing Centre Local Court on Thursday 20 August 2020.

There are reports he is also under investigation for similar incidents on Melbourne trains.

“Since the start of the year, our officers have been working hard to target and disrupt graffiti offenders across the transport network,” said Police Transport and Public Safety Commander, Acting Assistant Commissioner Tony Cooke.

“Over the past two months alone, our officers have arrested eight men and charged them with 116 graffiti-related offences across Sydney’s public transport network.

“It’s something we don’t tolerate, and we make no apologies for taking the appropriate action against those who think they can cause this malicious damage.”

Whilst juveniles are usually those prosecuted for graffiti related offences at 60.2% of cases, the youngest arrested out of the eight men is 24 years old.

Another 44-year-old vandal linked to the group has had drugs and weapons seized from his Punchbowl dwelling.

In NSW, graffiti vandalism costs over $300 million each year with this figure escalating to nearly $2.7 billion nationally, according to the Australian Bureau of Statistics.

1 in 5 Australians believe that graffiti is a social disorder issue in their local area.

It is a consistently underreported crime in which it is difficult to apprehend offenders even when reported, which leads to low prosecution rates.

Public transport is the second highest most common premise on which graffiti occurs (26.8%), next to residential dwellings (19.7%). Therefore, in such situation’s offenders will likely also be charged with trespass related offences.

Table Of Contents

The Passenger Transport (General) Regulation 2017 (NSW)
The Inclosed Lands Protection Act 1901 (NSW)
The Graffiti Control Act 2008 (NSW)
Section 195 of The Crimes Act 1900 (NSW)

The Passenger Transport (General) Regulation 2017 (NSW)

There is a maximum penalty of $5,500 if anyone without reasonable excuse, interferes with any equipment attached to or forming part, of a public passenger vehicle or train or wilfully damages any part of the same (clause 57 Passenger Transport (General) Regulation 2017).

The same maximum penalties apply for going into or onto, or remain on or in (without reasonable excuse) the restricted area of a station, any running lines or associated part of any rail infrastructure, any workshops forming part of rail infrastructure, any offices or administrative areas of a railway or any other railway premises.

Clause 61 of the Passenger Transport (General) Regulation 2017 prescribes up to $2,200 fine for destroying or damaging any public passenger vehicle or train or any rail infrastructure or property on railway premises.

The above maximum penalties are applicable if the matter is dealt with in a court. Whereas, instead of going to court over it, police can issue an on-the-spot fine of $400 (penalty notice). Payment of which, results in an end to the matter.

The Inclosed Lands Protection Act 1901 (NSW)

Pursuant to the Inclosed Lands Protection Act 1901 (NSW) any person who, without lawful excuse, enters into inclosed land without the consent of the person in charge of the land, or who remains on after being requested by the person in charge of to leave faces a maximum penalty of a $1,100 fine in the case of a school, child-care service, hospital or nursing home or $550 if otherwise.

The Graffiti Control Act 2008 (NSW)

Graffiti is criminalised under section 4 the Graffiti Control Act 2008 (NSW) in which a person must not, without reasonable excuse intentionally mark any premises or other property, unless the person has first obtained the consent the owner, occupier or person in charge of the premises.

If the mark created is easily removable through actions such as wiping or using water or detergent, or in situations where a graffiti implement was not used, a maximum penalty of a $440 fine.

However, in aggravated circumstances such as where spray paint, marker pen or an implement that produces a mark that is not readily removable by wiping or by use of water or detergent, a maximum penalty of a fine of $2,200- or 1-year imprisonment may apply.

The possibility of imprisonment, under the Graffiti Control Act, only applies to those who have previously been convicted of related offences on such a multitude of occasions that the court is satisfied that the person is a serious and persistent offender and is likely to commit such an offence again.

Graffiti offences in NSW is taken very seriously by courts.

Section 195 of The Crimes Act 1900 (NSW)

In situations where the graffiti has caused the property upon which it was done to become “imperfect” or “inoperable”, it may be considered destroying or damaging property (‘A’ (a Juvenile) v The Queen [1978] Crim L Rev 689). The impairment of the value or usefulness of the property may be permanent or temporary.

Pursuant to section 195 of the Crimes Act 1900 (NSW), a person who intentionally or recklessly destroys or damages property belonging to someone else is liable for a maximum penalty of 5 years in jail. When done in company, an offender is liable for a maximum penalty of 6 years in jail.

Have a question on this topic of law? Give our friendly criminal lawyers in Sydney a call for a free consultation today.

Published on 19/07/2020