Graffiti Control Act 2008 No 100

Currency

As amended to Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (No 53). Sch 4.21 commenced 24 September 2018. Current to 28 September 2018.

Jurisdiction

Section 20: Proceedings for an offence under this Act may be dealt with summarily before the Local Court and must be commenced not later than 2 years from when the offence is alleged to have been committed. (Note: The 2 year limitation period was inserted by Act No 59 of 2014 and, from 23 October 2014, displaces the general 6 month limitation period for the commencement of summary proceedings imposed by s 179(1) Criminal Procedure Act 1986).

Compensation

Section 18: A person convicted of an offence under this Act is liable to pay such amount not exceeding an amount equal to 20 pu as the court may order as the cost of, or contribution to, the repair or restoration of any damage caused by the action which resulted in the conviction.

Alternative/additional orders

The Act provides the following alternative or additional options when sentencing a person under this Act:

  • community clean up orders under Pt 3A — available for any offence under the Act

  • alternative and additional orders under Pt 4A — available only for offences under s 4 (marking premises or property by means of a graffiti implement) or s 5 (possession of graffiti implement). The court may:

    • impose a community correction order with an additional community service work condition under the Crimes (Sentencing Procedure) Act 1999, or a community service order under the Children (Community Service Orders) Act 1987 directing the person to perform community service work, instead of imposing a fine: s 13B(1)

    • make a driver licence order, in addition to or instead of any other penalty: s 13B(2).

Community clean up orders

Section 9B: When imposing a fine upon a person for an offence under this Act, the court may make a community clean up order to satisfy the amount of the fine:

  • at the time the fine is imposed, or

  • at a later time, except where the fine has been fully paid or has been referred to the Commissioner of Fines Administration for enforcement action.

A community clean up order enables the offender to perform community clean up work in satisfaction of the amount of the fine, calculated at a rate of $30 per hour: see s 9G. The offender may pay the fine instead of completing the community clean up order.

Subject to consideration of suitability, a community clean up order can be made in relation to an adult or child offender: s 9C.

Section 9B(1A): A community clean up order may be made on the application of the prosecutor or the offender, or on the court’s own motion.

Section 9D: An order can only be made where the court is satisfied, following consultation with Department of Human Services (for child offender) or Corrective Services, that:

  • the offender is a suitable person for community clean up work, and if a child, is sufficiently mature to perform community clean up work

  • supervised arrangements for community clean up work exist in the area where the offender resides

  • community clean up work is available in the area where the offender resides.

The court must also have regard to whether the offender is willing to participate in the community clean up work.

Section 9F: At the time of making the order, the court must explain to the offender using language reasonably likely to be understood:

  • the requirements to be complied with by the offender under the order,

  • the consequences that may follow if the offender fails to comply with those requirements, and

  • the fact that the order may also be satisfied by payment of the fine.

Section 9G: The number of hours of community clean up work, specified in a community clean up order, is calculated at the rate of 1 hour for each $30 of the amount of the fine (or that part of the fine that is unpaid). The number of hours in any one community clean up order must not exceed 300 hrs for an adult or 100 hrs for a child. An offender may be subject to more than one order at any one time, and in the case of a child, orders may be performed concurrently.

Section 9H: As part of a community clean up order, an offender must where practicable participate in a graffiti prevention program for at least 2 hours.

Community service orders

Section 13B(1): The court may make a community corrections order under the Crimes (Sentencing Procedure) Act 1999 (in the case of an adult offender), subject to the standard conditions and to an additional community service work condition, or a community service order directing the person to perform community service work under the Children (Community Service Orders) Act 1987 (in the case of a child offender) instead of imposing a fine on an offender for a graffiti offence (that is, an offence under ss 4 or 5 of the Act) committed after the commencement of the Graffiti Legislation Amendment Act 2012 on 10 December 2012.

Under the Children (Community Service Orders) Act 1987, a community service order imposed for a graffiti offence must include a graffiti clean up condition requiring the offender to perform graffiti removal and/or restoration, unless the court considers in the circumstances of the case that it is not reasonably practicable for the offender to perform work of that kind: s 11(3), (4), (6).

If the court decides not to include a graffiti clean up condition, it must make a record of its reasons for doing so: s 11(5) Children (Community Service Orders) Act 1987.

Driver licence orders

Section 13B(2): The court may make a driver licence order instead of or in addition to imposing any other penalty on an offender for a graffiti offence (that is, an offence under ss 4 or 5 of the Act) committed after the commencement of the Graffiti Legislation Amendment Act 2012 on 10 December 2012. Section 13C provides for two types of orders:

  • an order extending a learner or provisional licence period for 6 months or a lesser period as specified in the order, with effect from the date on which the learner or provisional licence period would otherwise end: s 13C(1)(a)

  • a “graffiti licence order” requiring the offender not to incur the same or more than the “threshold number of demerit points” against their licence for 6 months or a lesser period as specified in the order, commencing from the date the order was made: s 13C(1)(b). Such an order must not be made if the offender has had 10 or more demerit points recorded against them in the past 3 years: s 13C(2). The offender’s licence is to be suspended by the Roads Maritime Services for a period equal to the graffiti licence order period if the person incurs the same or more than the threshold number of demerit points during the graffiti licence order period: s 38 Road Transport Act 2013.

When making a driver licence order, the court is to:

  • take into account a statement of the offender’s driving record: s 13G(1)

  • specify the threshold number of demerit points that apply to the offender during the graffiti licence order period: s 13E(1). Subsection (2) defines this to be four demerit points or another amount prescribed by the regulations (with no other number prescribed at present)

  • explain or cause to be explained to the offender, in language they are likely to readily understand, the requirements they must comply with under the order and the consequences that may follow if they fail to do so: s 13F(1)

  • notify the RMS of the making of the order and its terms, as soon as practicable after it is made: s 13G(2).

Care should be taken when making a driver licence order, as it is uncertain whether the power to correct a sentencing order under s 43 Crimes (Sentencing Procedure) Act 1999 extends to such orders.

Sentences of imprisonment under ss 4 or 5

A court must not sentence a person to imprisonment under s 4(2) unless the person has previously been convicted under ss 4 or 5 on so many occasions that the court is satisfied the person is a serious and persistent offender and is likely to commit such an offence again: s 4(4).

Defence

Section 14: It is a general defence to a prosecution for an offence under this Act if the defendant satisfies the court that the act complained of in the information for the offence was done with lawful authority.

SECTION DESCRIPTION PENALTY (MAX)

4(1)

A person must not, without reasonable excuse, intentionally mark any premises or other property without the consent of the occupier, or owner if unoccupied

4 pu
4(2)

An offence under s 4(1) committed in circumstances of aggravation (intentional marking of premises or property by means of a graffiti implement or in a manner not readily removable by wiping or use of water or detergent s 4(3)

20 pu or 12 mths
5(1) Have graffiti implement in possession with intention that it be used to commit an offence under s 4(2) 10 pu or 6 mths
6 A person must not intentionally affix a placard or paper on any premises so that the placard or paper is within view from a public place without the consent of the occupier, or owner if unoccupied 4 pu
7(1) Sell spray can to person under 18 yrs 10 pu
8(1) Occupier of shop display spray can for sale unless properly secured 10 pu
8A(1) Supply spray can to person under 18 yrs 10 pu
8B(1) Person under 18 yrs have possession of spray can 10 pu or 6 mths