Last updated 29 August 2016
It is an offence for a person to possess:
- a graffiti instrument that is reasonably suspected of having been used for graffiti, is being used for graffiti or reasonably suspected of being about to be used for graffiti
- an implement that is being, is to be or has been used for breaking into a place or car, to injure a person or damage property
- a thing that is reasonably suspected of having been stolen or unlawfully obtained and is unlawfully possessed (ss 15–17 Summary Offences Act 2005 (Qld) (Summary Offences Act)).
For the first and second offence, it may be a defence to prove that possession was not connected to any involvement by the person in the offence.
Graffiti instruments, as defined in sch 2 of the Summary Offences Act, include a container from which substance may be forced (i.e. spray paint can) or an etching instrument. The word ‘include’ in the definition means that the list is not exhaustive of the things that can constitute a graffiti instrument, and potentially a creative approach could be taken by police. In a particular case, the police alleged that a video camera and digital cameras used to record graffiti offences and mobile phones used to make the necessary arrangements were graffiti instruments. The charge was later withdrawn on different grounds, so there has been no judicial determination as to whether or not cameras and phones could constitute a graffiti instrument.
Note that an alternative offence, the offence of wilful damage, exists under s 469 of the Criminal Code Act 1899 (Qld). Wilful damage caused to public property (e.g. by spraying or etching) is a crime, and offenders are liable to imprisonment for five years. The charge preferred is at the discretion of the police. Often the police will elect the more serious offence of wilful damage where an offender has previously been charged on a number of occasions with the lesser graffiti offence.
Opportunity to Explain
Section 634(2) of the Police Powers and Responsibilities Act 2000 (Qld) provides that a police officer who suspects a person has committed any of the above graffiti or possession offences must, if reasonably practicable, give the person a reasonable opportunity to explain why the person was in possession of the relevant instrument, implement or thing. Police can charge the individual with the offence only if no explanation or an unreasonable explanation is given.
Each of the offences attracts a maximum penalty of $2356 or one year imprisonment. For graffiti instrument offences, punishment may include community service (e.g. cleaning up graffiti or payment of compensation).