Section 5 of the Graffiti Control Act 2008 (NSW) is Possessing Graffiti Implement and is extracted below.
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5 Possession of graffiti implement
(1) A person must not have any graffiti implement in the person’s possession with the intention that it be used to damage or deface premises or other property. Maximum penalty: 10 penalty units or imprisonment for 6 months.
(2) 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 section 4 (or under the corresponding provisions of the Summary Offences Act 1988 as in force before their repeal by this Act) 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.
(3) If a person is convicted of an offence under this section, the court may, in addition to any other penalty it may impose, make an order that the graffiti implement be forfeited to the Crown, and the graffiti implement is forfeited accordingly.