Marking and Possessing Graffiti – Withdrawn

marking and possessing graffitiOur client was charged with the following offences under the Graffiti Prevention Act 2007:

  • Marking graffiti visible from a public place; and
  • Possessing a graffiti implement with the intent to mark graffiti.

The mark graffiti charges related to considerable graffiti on the barriers and walls of a major freeway throughout the south eastern suburbs of Melbourne, allegedly done by our client.

The possession charge related to a spray can found under our client’s bed during the course of a search warrant.

Following a summary case conference and contest mention, the matter was booked in for a contested hearing. Prior to that contested hearing, the prosecution advised that they would withdraw all charges and not proceed with the prosecution.

We represented the client at the Frankston Children’s Court.

There was no direct evidence against our client as regarded the marking graffiti charges. No forensics were found and our client was not captured on CCTV footage. Further, there were no witnesses to the graffiti to positively ID us as being involved.

The graffiti was characterised by the repeated use of a particular tag, which the police alleged belonged to and was used by our client. A search warrant was executed at our client’s home and together with the spray can, police located a sketch book containing the same tag as that on the freeway. It was repeated several times – in several different ways – throughout the book. However, the book also contained many other different tags.

We argued that the circumstantial evidence against our client was insufficient to support a finding of guilt. Further, our client is an apprentice spray painter and sign writer, with a lawful explanation for the spray can found in his home. He regularly practices the techniques he learns at TAFE on a board in his backyard set up for that purpose.

Negotiations were had at the summary case conference and the prosecution refused to withdraw any of the charges. The matter was adjourned for contest mention and at that court date, the prosecution offered to withdraw the mark graffiti charges provided our client pleaded guilty to the charge of possessing the spray can with intent to mark. We refused this offer and the matter was booked in for a contested hearing. A special mention of the matter was listed prior to the contest date.

The prosecution contacted us prior to the special mention to advise that following further consideration, they had decided to withdraw all charges against us. The prosecution had indicated that if we were found guilty of the offences, they would be seeking restitution of $40,000 to cover the cost of removing the graffiti. This application falls away in light of the withdrawal of charges.

Our client has now maintained his clean criminal record and avoided a contested hearing and the restitution payment.


DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 09/06/2015