Common criminal offences
This is a list of some of the more common criminal offences with which people are charged at protests.
See below for a note on sentencing.
Trespass
It is an offence to enter and / or remain upon premises after you have been asked to leave by the owner or their representative (security guard/ property manager/ police acting on the owner’s behalf). The maximum penalty for trespass is a fine ranging from $550- $1100 plus court costs (s4 Inclosed Lands Protection Act 1901). Note that there are special places where similar laws apply.
Obstruction
It is an offence under NSW law to prevent the free movement of a person, vehicle, or vessel in a public place. The maximum penalty for this offence is a $440 fine. This is the offence which is mainly used by the police for people who are obstructing a footpath or traffic (s6 Summary Offences Act 1988). There is a lawful authority defence (s12). For a defence to this offence when a Notice of Intention form has been lodged, see the Notice of Intention Procedure.
There is also a specific offence listed under Commonwealth law for unreasonable obstruction while taking part in an assembly. Both these Commonwealth offences relate to Commonwealth buildings s9 Public Order (Protection of Persons and Property) Act 1971 (Cth)).
Offensive conduct and offensive language
It is an offence to behave offensively or use offensive language in, near, or within hearing distance from a public place unless there is a defence of reasonable excuse. This includes swearing. The maximum penalty for this offence is a $660 fine or three months’ imprisonment (ss4 and 4A Summary Offences Act 1988 (NSW).
Three women who took off their clothes and covered themselves with fake blood to protest against the war in Iraq on 14 November 2002 in Martin Place, Sydney, were charged with ‘offensive conduct.’ They were not fined, but ordered to pay court costs of $55 each.
Offensive language is becoming increasingly difficult to prove in the courts as community standards have changed. (See Police v Butler [2003] NSWLC 2 for a broad discussion on offensive language.)
Resist or hinder police
It is an offence to resist or hinder police (or incite someone else to do so) when executing their duties- including during the making of an arrest. To 'resist' is to oppose with force. To 'hinder' is to make the police action more difficult to carry out. The maximum penalty is a fine or $1100 and or 12 months’ imprisonment, or both (s546C Crimes Act 1900 (NSW)).
Assault police
Assault can be either physical or verbal, or a combination of the two. It is an offence to threaten police with violence.
Verbal assault includes threats made to police. If you intentionally or recklessly make a threat which causes a police officer to apprehend immediate and unwanted violence, this will be assault. For example, making threats such as, “I’ll deck you!” will constitute assault if it can be proven that the police officer genuinely believed and feared that you would act violently towards him or her.
Penalties for this offence are quite severe. Assaults and other actions against police are detailed in s60 Crimes Act 1900 (NSW).
Disobeying a direction to ‘move on’
Police can give a “reasonable direction” to a person to move on in order to prevent obstruction, harassment or intimidation. It is an offence to disobey a police direction to move on. The maximum penalty for this is a $220 fine. Remember, this offence does not exist in the case of an apparently genuine protest but individual police officers may not be aware of this restriction on their powers (s200 Law Enforcement (Responsibility and Powers) Act 2002 (NSW)).
Breach of the peace / apprehended breach of the peace
This is one of the most commonly used charges. Police have the power to intervene to stop damage to property or to stop a fight.
The power of a police officer to arrest for breach of the peace is the common law. This means that the exact nature of the power does not come from an Act of parliament, but from statements by judges and academics over many years. This means that the exact nature of ‘breach of the peace‘ is not clear. The police use this to their advantage.
Even more vague is ‘apprehended breach of the peace’ for which the police can also arrest protesters.
One definition of breach of the peace is that it occurs when 'harm is actually done or is likely to be done to a person or in his presence to his property” or where “a person is in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance' (R v Howell 1982 QB 416).
The use of arresting for this offence varies. Sometimes, the police will go through a phase of arresting protesters for breach of the peace, driving them to a remote location, and the releasing them. No charge is brought against the person, but because they are under arrest, there is a legal obligation to provide their name and address.
Alternatively, police may take protesters to a police station where they will be formally charged with breach of peace. Additionally, a police officer has power to enter premises if he or she believes that a breach of the peace is likely to be committed or has been committed.
Likely sentences for breach of the peace include a fine, court costs (about $55) or a section 10 (no recorded conviction, but needs to pay court costs). For the meaning of a 'section 10,' see 'sentencing" (below).
Graffiti and putting up posters
Graffiti and putting up posters could fall under a number of laws, depending on when and where the alleged offence occured.
If it is a special location, it might break a law specific to that area, such as the Sydney Opera House (see protesting at special places).
There is then the Summary Offences Act, which made It is an offence to graffiti, stencil or put up posters and stickers on buildings, structures or roads without the consent of the owner. Drawing graffiti with spray paint, or possessing spray paint with the intention of damaging property, is considered a more serious offence than putting up posters or stickers, or marking walls with chalk. The maximum penalty for putting up posters or stickers, or chalking walls, is a fine of $440, whereas the penalty for spray-painting is a fine of $2200 (maximum) or 6 months’ imprisonment. There is a "reasonable excuse" defence available for the offence of using spray paint to damage or deface property. It is also an offence to have spray paint in your possession with the intention of using it to damage or deface property. (See ss9-10E Summary Offences Act 1988 (NSW)).
The Graffiti Control Act 2008 became law in December 2008 and this was soon toughened up by the Graffiti Control Amendment Act 2009. Both Acts generally toughen the law in relation to graffiti, including a new offence of possessing a 'graffitti instrument' with the intention of using it to deface premises or other property (s5). The maximum penalty is 10 penalty units (ie, $1,100) or 3 months imprisonment (see the note on 'Sentencing,' below). A graffitti instrument can include a marker pen. A media release was issued by the Attorney General in February 2009.
In early 2009, an extraordinary case occured where a Sydney woman was sentenced to 3 months' imprisonment for the act of 'tagging' her name. The sentence was overturned on appeal.
Prosecutions for putting up posters on council property are often pursured by the council concerned, by getting the name and address of the organisation from the poster. In the past, some organisations put the words 'not for posting' on their posters as a way of indicating their intentions where other people (over whom they have no control) put the posters up, despite the instruction on the poster. Letters written to the Council pointing out the instruction on the poster, or submitting a minute of a meeting directing members not to put up posters, have sometimes convinced the Council not to pursue prosecutions.
A technical point is that political posters often just have the name of the campaign group rather than the name of an individual. As most campaign groups are unincorporated associations, it is not clear if such a group can be fined. As far as we know, the point has never been tested in court.
There has also been a change of policy in relation to posters in the Sydney City Council area, which received public attention during November-December 2008. Sydney City Council wrote to a number of groups, including protest organisations, advising that a new 'get tough' policy was being introduced by Council in regard to putting up posters on Council property. Following a campaign by the group Sydney Free Speech Alliance, Sydney City Council changed its mind. A meeting of Council was told '...there is no intention to prosecute those people putting up political posters...' (City of Sydney Council Minutes 24 November 2008, see pp.1108-1111).
The policy adopted by Sydney City Council of not having Council Rangers pursue prosecutions does not apply to others who have the authority to issue penalty notices, such as police officers. It is also unclear what steps, if any, Council will take to let activists know if Council changes its policy.
However, someone charged with this offence may ask an experienced lawyer whether Council policy can be used as a defence or whether the policy can be used to mitigate (reduce) sentence.
Identity
There is a legal obligation to give your name and address to a police officer in some circumstances. For a general discussion on this, see the identification section. Where there is such an obligation, it is an offence not to give your name and address (s11 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)). This applies to indictable (or very serious) offences. It is an offence to fail to comply with this demand without reasonable excuse and this carries a $220 fine.(s12 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)) It is very unlikely that an indictable (very serious) offence will occur at a normal protest. Providing false or misleading information about identity, without reasonable excuse, is also an offence carrying a $220 fine. (s13 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW))
Failure to comply with police searches
It is an offence to fail to comply with a search by police for knives or dangerous implements if suspected or if detected by a device. The penalty for this is a $550 fine (s27 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
For more information on police searches, see the Police Powers section.
Damage to property
It is an offence to damage or destroy the property of another person. Generally, the offence of maliciously destroying or damaging property belonging to another person carries a penalty of 5 years’ imprisonment or 10 years’ imprisonment if the offence involved the use of fire or explosives (s195 Crimes Act 1900 (NSW)To act “maliciously” in the context of this offence means to act with intent to injure a person or their property, or to act with indifference to human life or suffering.
If you threaten to damage or destroy the property of another and intend to cause fear that you will carry out your threat, this also will be an offence and has a penalty of 5 years’ imprisonment (s199 Crimes Act 1900 (NSW)).
There are also specific offences that apply to certain types of property. Damage to fountains is a separate offence carrying a penalty of $440. (s7 Summary Offences Act 1988 (NSW))
] as is damage to protected places such as war memorials, statues or shrines carrying a penalty of up to $2200. The police have sometimes interpreted the meaning of a war memorial quite widely. For example, the El Alamein fountain in Kings Cross has been considered a war memorial.
It is unclear whether dry chalking on a road is an offence of this nature.
Intimidation
Environmental protesters are often charged with the offence of intimidation (s545B Crimes Act 1900 (NSW)). If you try to stop a person from doing something which they are legally entitled to do, or act violently towards or intimidate them or their family, or oppress them in other ways.
“Intimidation” includes creating a “reasonable apprehension” of an economic injury, or creating a “reasonable apprehension” of physical violence or damage to property.
This offence carries a penalty of 2 years’ imprisonment, a $5 500 fine, or both.
Unlawful assembly
Under s545C Crimes Act, it is an offence to “knowingly join in” or “continue in” an unlawful assembly. An unlawful assembly for the purposes of this provision is an assembly of 5 or more persons who have as their common object to compel a person to do something which (s)he is not entitled to do by law, or to stop him/her from doing something which (s)he is legally entitled to do, through the use of intimidation or injury.
The penalty for knowingly engaging in unlawful assembly is a fine of up to $550 and/ or 6 months’ imprisonment.
Other charges
More serious public order offences include riot and affray.. These are very serious charges, and you should see legal advice from a solicitor familiar with this area of law.
Defences
Defences to criminal charges requires expert advice from a lawyer familiar with this area of law. Defences can be specific to the offence. This means that the act which creates the offence might also outline the defences available. OIn addition to specific offences, there are "general" defences. Some of these are mentioned below.
You might wish to pursue a defence, not only to defend your case, but to attract publicity for your cause by running a creative defence, such as necessity. This will prolong your case, perhaps increasing your chances to attract greater media attention, but may also provoke greater interest in your case because the defence is unusual. However, if your defence is not a valid course at law, it is not likely that a legal practitioner would assist you, in view of their duties to the court.
Common defences include self-defence, necessity, reasonable excuse, lawful excuse and honest and reasonable belief or a claim of right.
Examples
Self-defence: In March 2003, two protesters painted a “No War” slogan on the Sydney Opera House sails as a protest against the war on Iraq. The two were charged with malicious damage to property. They attempted to raise a defence under s418 of the Crimes Act, arguing that their actions were designed to defend potential victims of the war in Iraq. The Court held that there was not a sufficient connection between the act and the people of Iraq for this defence to be used. Both were sentenced to 9 months’ weekend detention, and ordered to pay $151 000 to the Sydney Opera House Trust to pay for clean-up costs.
Reasonable excuse: The court must decide whether you have a reasonable excuse by reference to the reasonable person test.
Lawful excuse: You can be lawfully excused from a crime if you had a legal right to do something. For example if you are charged with trespass, you could raise the defence of lawful excuse if you were invited onto the property by the owner, or if you had some other legal right to be there.
An example of this defence being used (unusuccesfully) involved a group of protesters who occupied a fenced area on a freeway construction site. They wanted to draw public attention to the environmental damage caused by the freeway. The court held that the right to protest did not amount to a lawful excuse. Lawyers may wish to read O’Donohue v Wille; O’Donohue v Archer; O’Donohue v Bartlett unreported, BC9903710, 6 July 1999.
Honest and reasonable belief: An honest and reasonable belief that you have the right to do something is sometimes a defence for some property offences.
In one example, a protester was trying to stop logging in a particular section of a forest. He was charged with the offence of intimidation - for trying to prevent a person from exercising his legal right to log in a particular section. The protester genuinely believed that logging was illegal in that particular section of the forest and the court held that this belief was reasonable, so the protester was able to use this as a defence to the charge of intimidation. See R v Keenan (1994) 76 A Crim R 374.
Invalidity: regulations passed by a Minister are only valid if the regulations are consistent with the aims of the Act. The same applies to local councils when they make bye-laws. Cases where regulations have been held invalid in protest situations include the meaning of "threatening, abusive and insulting words" (Coleman v Power 2004) and the meaning of "annoyance" in respect of regulations made at the time of the Pope's visit to Australia in 2008 (Evans v State of NSW 2008).
Mental illness: It is a defence if a person was mentally ill at the time of committing an offence where that mental illness resulted in the person being incapable of forming the intention to commit a criminal act.
Finally, it should be remembered that what’s written above is simply some information about common offences and possible defences. People facing criminal charges should get advice from a lawyer who regularly practices criminal law.
Sentences
The 'maximum penalties' are rarely given, and many factors are taken into account by a court when deciding the level of penalty to impose. These factors include the person’s age and history of criminal convictions (if any). A lawyer practising in criminal law will be able to give advice as to the type of penalty you are likely to receive if convicted of an offence.
In the case of conviction, there is a possibility of a 'Section 10.' This refers to the s10 Crimes (Sentencing Procedure) Act 1999. It says that 'without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed.' This has the advantage of the person not having a criminal record. It is likely that you will still need to pay court costs - about $85.
A criminal conviction can have consequences for future employment, entering certain professions (law, accountancy, medicine) and can create problems entering certain countries (eg, the USA is quite harsh with this).
When a statute refers to a 'penalty unit,' the amount is $110. So, 3 penalty units = $330.
The Judicial Commission of NSW website has a section on sentencing, but it tends to deal with more serious offences. There is a subscription service, Sentencing Information Subscription, which gives information on Local Court matters, but it is expensive. It may be available in large libraries or specialist legal centres - we are currently compiling a list. A publication on common offences in the Local Court, including sentences for the 20 most common offences, can be found in the publication below (the pdf document can be downloaded). It is important to note that sentencing is a fluid practice and a person may receive sentences below or above the average depending on many factors, including age, prior convictions, the attitude of the judge and the general political environment in which an offence occurs.
| local_court_sentencing_data.pdf |
Fines
