Is Pepper Spray a Prohibited Weapon Offence in NSW?

https://www.criminaldefencelawyers.com.au/blog/is-pepper-spray-a-prohibited-weapons-offence-in-nsw/


Poppy Morandin.

A 27-year-old man and 20-year-old woman have been charged following a road rage incident in which pepper spray was used, in the Snowy Valleys.

At around 1:15pm in the afternoon, officers connected to the Riverina Police District attended Capper Street, Tumut, following reports of a road rage incident.

Another pair, a 25-year-old man and 27-year-old woman, were driving a Mitsubishi Triton, when they allegedly become involved in an altercation with the occupants of a Mitsubishi Mazda 6.

The pair’s 6-week-old baby was also in the car, as they drove along the Snowy Mountains Highway.

When both vehicles had stopped, the occupants of the Mitsubishi Mazda 6 approached the other driver and passenger where the male sprayed them with pepper spray.

Both vehicles have then driven away from the scene.

The police located the occupants of the Mazda 6 – the 27-year-old man and 20-year-old woman – a short time later.

Upon a search of their vehicle, two cannisters of pepper spray are alleged to have been located.

The 27-year-old male passenger was arrested and charged with two counts of assault occasioning actual bodily harm and two counts of possess or use a prohibited weapon without permit.

The female was charged with one count of possess or use a prohibited weapon without permit and one count of stalk/intimidate intend fear of physical/mental harm.

Both were granted bail and are to appear at Tumut Local Court on Thursday 13 January 2022.

The incident is reported (https://www.police.nsw.gov.au/news/news_article?sq_content_src=%2BdXJsPWh0dHBzJTNBJTJGJTJGZWJpenByZC5wb2xpY2UubnN3Lmdvdi5hdSUyRm1lZGlhJTJGOTg4NjUuaHRtbCZhbGw9MQ%3D%3D) to have not resulted in serious injuries.

A recent study into road rage has found that in 2020, 45% of Australians surveyed admitted to showing signs of road rage and aggression toward another road user.

Whilst most road rage incidents involved shouting, or a rude gesture (72%), over 6% involved damage or attempted damage to a vehicle.

Only 22% of drivers would act less aggressively toward a car with a ‘Baby on Board’ sticker, whereas 27% (https://www.budgetdirect.com.au/car-insurance/research/road-rage-study.html) believe they drive less aggressively if they have a passenger with them in the car. 

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  1. Is Pepper Spray a Prohibited Weapon’s Offence in NSW? (https://www.criminaldefencelawyers.com.au/blog/law-on-police-use-of-pepper-spray-in-nsw/)

    In NSW, pepper spray is considered a ‘prohibited weapon (https://www.criminaldefencelawyers.com.au/blog/what-are-the-defences-and-penalties-for-being-armed-with-an-offensive-weapon-in-nsw/)’ under schedule 1 of the Weapons Prohibition Act 1998 (NSW).

    Pepper spray is an aerosol spray which contains the inflammatory compound called ‘capsaicin’.

    It causes burning, pain and tears if it comes into contact with a person’s eyes, as well as shortness of breath or an inability to breath properly.

    In more serious cases, it can cause an inability to speak or loss of consciousness.

    Generally, symptoms will resolve on their own within 30 minutes without the need for medical attention.

    The schedule refers to, and prohibits, ‘any device designed or intended as a defence or anti-personnel spray and that is capable of discharging any irritant matter’.

    A person who is not authorised to possess or use pepper spray and does so, faces a maximum penalty of 14-years in jail, pursuant to section 7(1) of the Weapons Prohibition Act 1998 (NSW).

    However, if the matter is dealt with summarily in the Local Court, which is more common, a maximum penalty of 2 years in jail is applicable.

    A person is allowed to possess and use pepper spray in NSW, if they have a relevant permit.

    Such a permit will only be issued to the police or for Government purposes.

    Nonetheless, if pepper spray is not used within the conditions of the permit, the same maximum penalties apply.

    As per section 7(2), a person who holds a permit to possess or use a prohibited weapon is guilty if they possess or uses it for a purpose other than in connection with their genuine reason for possessing or using the weapon (https://www.criminaldefencelawyers.com.au/blog/what-are-the-defences-and-penalties-for-being-armed-with-an-offensive-weapon-in-nsw/), or if they contravene any condition of the permit.


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