Summary Offences Act 1981, s 11A

It’s illegal to “damage or deface” any building or other structure (a bridge for example) by writing, drawing, painting, spraying or etching on it, or by marking it in some other way. This offence also covers tagging roads, trees or other property like trains, cars and yachts.

For this offence you can be fined up to $2,000, or given a community-based sentence, or both. “Community-based sentences” include community work, supervision, intensive supervision and community detention (with community detention you’re confined to your home under electronic monitoring for up to 12 hours a day). These sentences are explained in the chapter “The criminal courts”, under “Sentencing”.

In more serious cases the police may decide to charge you with intentional damage (or “wilful damage”), which carries higher penalties, see “Facing heavier charges: Wilful or intentional damage”.

Summary Offences Act 1981, s 33

Tagging doesn’t include sticking up posters. There’s a different, less serious offence (called “billsticking”) of putting up posters, placards or banners without permission. For this the maximum penalty is only a $200 fine.

Summary Offences Act 1981, s 11; Crimes Act 1961, s 269(2)(a)

Note: If you’re under 18, you’ll be dealt with under the special youth justice laws, rather than being charged in the District Court (the adult courts). For information about the youth justice system, go to www.youthlaw.co.nz.

The police sometimes charge taggers with the more serious offence of intentional damage (or “wilful damage”), which carries higher penalties. You can be convicted of this if you damage property either intentionally or recklessly.

“Recklessly” covers where you didn’t necessarily intend to cause the damage, but you were aware of the risk that it could result from what you were doing and you went ahead and ignored the risk.

If you’re charged with this under the Summary Offences Act (section 11, “Wilful damage”) the maximum penalty is three months’ prison or a fine of up to $2,000. But if you’re charged under the Crimes Act 1961 (section 269, “Intentional damage”) the maximum penalty is seven years’ prison.

Case: [2015] NZHC 1799

The courts have said that you should normally be charged with wilful/intentional damage – and therefore possibly face prison – only if:

• the tagging was part of some other more extensive damage, rather than simply the normal damage caused by tagging, or
• you’re a serial tagger, particularly if you haven’t responded to community-based sentences like community work.

Cases: [2015] NZHC 1799; CRI-2009-409-000059, 7 May 2009

The police aren’t always consistent about what charges they bring for tagging, and have sometimes laid wilful or intentional damage charges even though the defendant wasn’t a serial tagger and there was no other damage. A High Court decision from 2015 (which disagreed with another decision from 2009) said that in these cases if you’re not a serial tagger and there was no other damage, you should normally only be given a fine or a community-based sentence, even though theoretically you could be jailed because the police brought the charge under the more serious offence.

The process will depend on the particular charge:

• If you’re charged with tagging under the Summary Offences Act (a Category 1 offence) you’ll be dealt with in the District Court, and usually by Justices of the Peace or a Community Magistrate rather than a judge. With Category 1 charges, you don’t have to go to court at all if you simply want to plead guilty, as you can send the court your plea in writing.
• If you’re charged with wilful damage under the Summary Offences Act (which is Category 2) you’ll be dealt with by a District Court judge. This will include your trial if you plead not guilty, where you’ll be tried by the judge without a jury.
• However, if the police charge you under the Crimes Act with intentional damage (which is Category 3), you’ll have the right to choose a jury trial in the District Court.

For an explanation of the different criminal offence categories, see the chapter “The criminal courts”, under “Overview of how the criminal courts work”.

Summary Offences Act 1981, s 11B

It’s a criminal offence just to have things like spraycans or markers in your possession, if you don’t have a reasonable excuse and if someone could reasonably conclude at the time that you intended to use them for illegal tagging or graffiti. In these situations you’d need to convince the police, or the judge if it goes to court, that you had the cans or markers for a legitimate purpose – painting a mural for a school or community project for example.

For this offence you can be sentenced to community work, or fined up to $500, or both.