Section 8B of the Graffiti Control Act 2008 (NSW) is Possessing Spray Cans by Under 18s and is extracted below.
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8B Possession of spray paint cans by persons under 18
(1) A person under the age of 18 years who is in possession of a spray paint can in a public place is guilty of an offence. Maximum penalty: 10 penalty units or imprisonment for 6 months.
(2) It is a defence (proof of which lies on the person in possession of the spray paint can) to a prosecution for an offence under this section that the person:
(a) had the spray paint can in his or her possession for a defined lawful purpose, being the lawful pursuit of an occupation, education or training, or
(b) had the spray paint can in his or her possession for another defined lawful purpose and was at or in the immediate vicinity of the place where the spray paint can was being used or intended to be used for that defined lawful purpose.
(3) In this section, a “defined lawful purpose” is:
(a) the lawful pursuit of an occupation, education or training, or
(b) any artistic activity that does not constitute an offence against this Act or any other law, or
(c) any construction, renovation, restoration or maintenance activity that does not constitute an offence against this Act or any other law, or
(d) any other purpose authorised by the regulations.
(4) The regulations may provide that this section does not apply to or in relation to any specified class or description of spray paint can.
(5) A court that convicts a person of an offence under this section must not sentence the person to imprisonment unless the person has previously been convicted of an offence under this section, or under section 4 or 5 (or under a repealed provision of the Summary Offences Act 1988 that corresponded to section 4 or 5), on so many occasions that the court is satisfied that the person is a serious and persistent offender and is likely to commit such an offence again. The corresponding provisions of the Summary Offences Act 1988 to sections 4 and 5, before their repeal by this Act, were sections 10A and 10B.
(6) In this section:“public place” means:
(a) a place (whether or not covered by water), or
(b) a part of premises,
that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include the premises of a school or other educational establishment.
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