Understanding the Law on Graffiti Charges in NSW - Criminal Defence Lawyers Australia

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By Sahar Adatia and Jimmy Singh.

From the times of convicts and drovers, to the street artists of today, graffiti has held a long and chequered history in Australia.

In particular, graffiti vandalism, which the Australian Institute of Criminology defines as the act of marking other people’s property with writing, symbols or graphics without their consent, has become ubiquitous around the nation, especially in urban areas.

There’s no denying that graffiti vandalism, despite some interpretations as being “street art”, has not always had strong community support. And it’s plain to see why – graffiti vandalism is not only an illegal act, but its ramifications upon society are also vast.

It is almost common knowledge, for example, that defacing property involves huge financial costs associated to local government and property owners. Not to mention, the detrimental impact it has on community perceptions of safety and public amenity. It’s no wonder that penalties for the act include hefty fines and even jail time.

And yet, last week brought to light the case of an Adelaide vandal who was let off the hook.

The man, who claims to be a relative of rock star Jimmy Barnes, avoided jail for his defiant graffiti spree.

Adelaide Chef Defaces over a Dozen Businesses in CBD, Avoids Conviction, Blames Behaviour on Drugs and Alcohol

On 12 August 2019, the chef from Adelaide, who, back in February, defaced more than a dozen businesses in the CBD during a graffiti extravaganza, faced Adelaide Magistrates Court and managed to avoid conviction.

Jess Alan Barnes, who claims to be the nephew of singer Jimmy Barnes, pleaded guilty to marking 22 businesses with graffiti on Union Street and Rundle Street on the morning of 23 February.

The 39-year-old apologised for his actions in the court, telling Magistrate Alfio Grasso that he was battling with mental health issues and alcoholism at the time, which led to his behaviour.

“I’m very sorry for what I’ve done, I’m prepared to pay full restitution and be held responsible for my actions,” Mr Barnes said.

He also told the court he lost his job as a chef at Midnight Spaghetti on Grenfell Street as a consequence of committing the offences.

Mr Barnes explained he had taken up urban art as a hobby and had the spray-paint on hand because the day prior he had painted a mural in Morphett Street.

Nevertheless, the court also heard he could not remember marking the graffiti or why he turned to vandalism to begin with.

Barnes Placed on 18-Month Good Behaviour Bond and Ordered to Pay $6,160 to Remove Graffiti

Mr Barnes was placed on an 18-month good behaviour bond by Magistrate Grasso, who also ordered him to pay $6,160 to cover the expenses of removing the graffiti.

Additionally, the magistrate urged Mr Barnes to stay away from consuming alcohol with his medication, which he described as a “recipe for disaster”.

“Regrettably he went to work … and can recall consuming at least 12 drinks, that on top of what I describe as heavy-duty drugs that were properly prescribed to him,” Magistrate Grasso said.

“He is remorseful, I accept that he is, he was going through difficult times at the time.

“I’m satisfied that this was not a premeditated offence.

“This man has never been in trouble before; I need to give him credit for that.”

Vandal Charged Again After Allegedly Pushing over News Reporter as he Left Court

Nevertheless, as Mr Barnes left the Adelaide Magistrate’s Court, he allegedly pushed over a reporter, then grabbed the hand of another, before spitting on her microphone.

He was charged with three counts of assault offences following the incident.

He was granted bail and will face court next month.

What Graffiti Vandalism Costs the Community

It is not surprising that while graffiti and such forms of “street art” have come into proliferation across urban areas, it indeed has many strident critics, and we only need to turn to the dire costs to the community that such offences incur.

Most people aren’t aware of the ramifications of graffiti vandalism upon society, but as the Keep Australia Beautiful organisation advises, the financial detriment is felt by many groups community-wide.

In fact, each year in NSW alone, graffiti vandalism costs local government and property owners more than $300 million.

Meanwhile, in the five-year period from 2009 to 2014, a total of 46, 404 incidents of graffiti were reported to NSW Police. This reflected an average number of incidents of 9,280 per year.

The costs, however, also go beyond those financial costs.

Research now suggests that graffiti can also be damaging to community perceptions of safety and public amenity.

Nonetheless, graffiti is a form of expression that is entrenched in society. For this reason, dealing with the problem has largely seen government initiatives focused upon on controlling the crisis rather than merely eradicating it.

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Understanding the Law on Graffiti Offences in NSW

Understanding the Law on Graffiti Offences in NSW

In NSW, graffiti is a criminal offence under the Graffiti Control Act 2008. This is a specific anti-graffiti legislation which aims to reduce the prevalence of graffiti and deter people from marking properties.

In NSW, graffiti-related offences carry a number of penalties. Alternative charges to this include damage or destroy property offences in NSW, which has been discussed in our previous blog.

As per the Graffiti Control Act 2008, the most common penalty for an offence is a fine.

Section 4 Graffiti Control Act 2008 (NSW) prohibits a person, without reasonable excuse, to intentionally mark a premises or property without consent. This carries a maximum penalty of $440 fine.

You will be guilty of this offence if you:

Intentionally mark a premises or property; and
You did this without consent; and
A graffiti implement was used to do it, i.e. spray paint, marker pen, or other device designed to leave a mark that is not readily removable by wiping it off (or that isn’t readily removable by using water or detergent over it); or
The marking is not readily removable by wiping it, even if a graffiti implement wasn’t used.

If this offence is committed in circumstances of aggravation, the maximum penalty is $2,200 or 12-months imprisonment. However, the court cannot sentence a first time offender to imprisonment unless he/she has previously been convicted of this offence (or for possessing a graffiti implement) on so many occasions that the Magistrate or Judge is satisfied that the offender is a serious and persistent offender who is likely to re-offend.

‘circumstances of aggravation’ here if when a person intentionally marks premises or property with a graffiti implement or in any other manner where the mark isn’t readily removable by wiping or by using water or detergent.

Defences to this offence include marking a public footpath or pavement with chalk. For example, marking out a hopscotch or handball court with the use of chalk. Other defences include, where the person committed the offence under a necessity or duress.

Possessing graffiti implement(s) is also prohibited in NSW, carrying a maximum penalty of $1,100 or imprisonment of 6-months. However, the court cannot sentence a first0time offender to gaol unless the offender has previously been convicted of this offence or for the offence of section 4 so many times that the Court is satisfied that the offender is a serious and persistent offender who is likely to re-offend under section 5 Graffiti Control Act 2008 (NSW).

If the court imposes a fine to an offender for a graffiti offence, the court may require the offender to perform community clean up work to satisfy that amount of the fine under section 9B Graffiti Control Act 2008 (NSW). This penalty cannot be imposed if the fine has already been fully paid.

However, other penalties that can be imposed by NSW courts include a gaol sentence, a Community Correction Order which can include a community service work, or a section 10 non-conviction sentence.

The court may also impose a driver licence order if the offender holds an ‘L’ or ‘P’ licence- by extending the offenders L or P licence period by up to 6-months.

In respect to unrestricted licence holders, the court can impose a graffiti licence order resulting in 4 demerit points for up to a 6-month period. (section 13E Graffiti Control Act 2008 (NSW)).

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Published on 20/08/2019