In August this year, two men were  fined thousands of dollars after pleading guilty to damaging or defacing a heritage-listed war memorial at Casino on the North Coast of New South Wales.

The site was damaged after a night of heavy drinking when one of the men tried to climb a lamp attached to the memorial, breaking it in the process.

The criminal law in New South Wales makes it a specific offence to damage or desecrate a protected place, such as war memorials or a cemetery.

Here's what the law says.

Protected places

Section 8 of the Summary Offences Act 1988 (NSW) sets out the law relating to damaging or desecrating a protected place.

A "protected place" is defined as a shrine, monument or statue located in a public place, and (without limitation) includes a war memorial or an interment site.

A "war memorial" relates to a war memorial located in a public place, which specifically includes but is not limited to the Anzac Memorial in Hyde Park, Sydney – as well as any other place prescribed as a war memorial.

An "internment site" means a place in a cemetery for the interment of human remains.

The offence of wilfully damaging or defacing protected places

Section 8(2) of the Act provides that a person commits an offence if the person wilfully damages or defaces any such protected place.

The maximum penalty for the offence is a fine of 40 penalty units. Currently, a penalty unit in NSW is valued at $110,  meaning the current fine is $4,400.

A separate offence is also outlined under section 7 of the Act where a person wilfully damages or defaces, enters upon or causes any foreign material or substance to enter into a fountain erected in a public place.

The maximum penalty for this offence is a fine of 4 penalty units (currently $440).

The offence of committing any nuisance or any offensive or indecent act in protected places

Section 8(3) of the Act outlines that an offence will be committed if a person commits any nuisance or any offensive or indecent act in, on or in connection with any war memorial or interment site.

This offence carries a maximum penalty of a fine of 20 penalty units (currently $880).

A public 'nuisance' means doing something that substantially and unreasonably interferes with the common rights of the public at large. For example, playing loud music which interferes with the ability for people to comfortably grieve at a cemetery.'

Conduct will be "offensive" if it is contrary to community standards. Courts have made clear the hypothetical person used to assess this must be "reasonably contemporary" and "not too thin-skinned". For example, performing a Nazi salute at a Jewish cemetery, would amount to offensive conduct.

Conduct will be 'indecent' if it is contrary to community standards but incorporates some sexual element.  For example, in 2017, a Canberra man was convicted of indecent exposure for  parading around naked at a war memorial.

Community service as an alternative to a fine

For offences relating to protected places, section 8(3A) of the Act provides an option that a court can, instead of imposing a fine:

  • make a community correction order under section 8 of the Crimes (Sentencing Procedure) Act 1999  that is subject to the standard conditions of a community correction order and to a community service work condition (despite the offence not being punishable by imprisonment); or
  •  make an order under section 5 (1) of the Children (Community Service Orders) Act 1987  requiring the person to perform community service work,

Both options allow for a person convicted of an offence under this section to rectify any damage caused (such as cleaning of graffiti left on tombstones) instead of paying a fine.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.