Digest No. 1604
New offence of graffiti vandalism
The Bill creates a new criminal offence, that of "graffiti vandalism, tagging, defacing etc". Every person is liable to a "community-based sentence"
or a fine not exceeding $2,000, or to both, who writes, draws, paints, sprays, or etches on, or otherwise marks, any building, structure, road, tree, property, or thing:
without lawful authority; and
without the consent of the occupier or owner or other person in lawful control (Part 1, Clause 4, inserting New Section 11A into the Summary Offences Act 1981).
Sale of spraycans to people under 18 prohibited
The Bill creates a new offence, that of selling a "spraycan" (see below for discussion of the definition of "spraycan") to a person under the age of 18 years of age. A person who contravenes this prohibition is liable on summary conviction to a fine not exceeding $1,500 (Part 2, Clause 5(1), inserting New Section 14A(1) and (2) into the Summary offences Act 1981).
Defences to a charge of selling a spraycan to a person below the age of 18
The Bill provides two possible defences to a charge of selling a spraycan to a person below the age of 18 years.
It is a defence if a person accused (a defendant) proves that:
the defendant is a Board (within the meaning of Section 2(1) of the Education Act 1989
), or is an employee of such a Board; or
the defendant is the governing body of a tertiary education provider (within the meaning of Section 159(1) of the Education Act 1989
), or an employee of a tertiary education provider;
and when the spraycan was sold, the buyer was enrolled at a school or institution managed by the Board or tertiary education provider; and the spraycan was sold to the buyer to enable him or her to undertake the work of his or her course at the school or institution, or to complete an assignment or project for the school or institution.
It is also a defence if the defendant proves that:
before or at the time of the sale of the spraycan, there was produced to the defendant a document purporting to be an "evidence of age document" (for discussion of "evidence of age document" see below); and
the defendant believed on reasonable grounds that the document was in fact an evidence of age document, the document related to the buyer of the spraycan, and the document indicated that the buyer was of or over the age of 18 years (Part 2, Clause 5(1), inserting New Section 14A(3) and (4) into the Summary Offences Act 1981).
What is an "evidence of age document?
The Bill defines the term "evidence of age document" as a document that contains a photograph of the person to whom it is issued and it contains information enabling the person's age to be determined and it is:
a New Zealand passport; or
a driver licence issued under the Land Transport Act 1998; or
a document of the kind described in Section 2A(2)(d) of the Sale of Liquor Act 1989 (Part 2, Clause 5(1), inserting New Section 14A(5) into the Summary Offences Act 1981).
What is a spraycan?
The Bill defines the term "spraycan" as meaning " ... a container (made of any material or materials) that ... contains paint, dye, ink, or some other pigment ... and ... is so designed that the pigment it contains can be propelled from it (whether by compressed or liquefied gas, or any mechanical means)" (Part 2, Clause 5(2), amending Section 2(1) of hte Summary Offences Act 1981, by inserting a new definition, that of "spraycan").
Certain spraycans to be secured in shops
The Bill provides that the "occupier"
of a "shop" (see below for discussion of what is a "shop") must ensure that a spraycan (as described below) in the shop is kept secured so that members of the public cannot obtain possession of it without the help of the occupier, or an agent or employee of the occupier. The occupier of a shop who fails or refuses to comply with this requirement commits an offence and is liable on summary conviction to a fine not exceeding $1,500 (Part 2, Clause 6(1), amending the Summary Offences Act 1981 by inserting New Section 14B(2) and (3)).
Which spraycans are subject to the requirement?
The requirement set out immediately above applies to a spraycan which is kept for sale in a part of a shop to which members of the public have access and that spraycan is not:
under the "physical control" of the occupier of the shop, or by an agent or employee of the occupier; or
under the "physical control" of a potential buyer who is being directly supervised by the occupier of the shop, or by an agent or employee of the occupier;
the shop concerned is open to the public (Part 2, Clause 6(1) amending the Summary Offences Act 1981, by inserting New Section 14B(1)).
What is a "shop"?
The Bill provides that the term "shop" means a building, place, or part of a building or place, where goods are sold by retail, or kept or offered for sale by retail and includes:
a barrow, stall, or other subdivision of a market; but
does not include a building, place, or part of a building or place, where the only business carried on is that of selling goods to people who are dealers who buy the goods to sell them again (Part 2, amending Section 2(1) of the Summary Offences Act 1981, by inserting a new definition, that of "shop").
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