I faced a 14-year jail sentence for carrying pepper spray

In Western Australia, it's legal for a woman to carry pepper spray for self-defence. But in NSW, it falls under the same ...

In Western Australia, it's legal for a woman to carry pepper spray for self-defence. But in NSW, it falls under the same category of offence as carrying nunchucks, bombs, swords and cross-bows. Photo: Getty Images

It happened on a day when I was running late for Court. I was reporting on an Inquest into a man who was shot dead after brandishing a cross-bow at police in the Australian outback. The trial was gripping, and as a writer I had been paid to be there. On time. Waiting in the bag-check queue and glancing anxiously at my watch, I saw I had two minutes before the first witness would be called.

My turn finally came and I placed my backpack on to the conveyor belt, stepped through the gates and watched my bag slip through the rubbery black flaps on the other side.

I went to pick it up but my hands were stopped by the calloused fingers of a security guard. "Ma’am, we’re going to have to search your bag," he said. 

"Really?" I replied. "I'm in a rush. Can I just get my notebook from it and leave the rest with you? I need to get to Court." 

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"Ma’am, we are going to have to ask you to empty your bag for us." He was jowly and officious, puffed up with a kind of petty self-importance.

"Claudia, be respectful. He’s just doing his job," a sober inner-voice lectured. "Haughtiness gets you nowhere." I listened to this inner-voice and, as per usual, my mouth did something quite different. 

"Look, I really don’t have time for this. I need to be in Court," I snapped as I took out some books, a computer, keys and a wallet. "See? There’s nothing." 

At precisely that moment, I produced from the depths of my backpack a small keyring with two items attached. One was a Swiss Army knife that I used to chop my food, and the other was a 10mg canister of pepper spray.

The security guard leapt back. "I had no idea they were there," I whispered, horrified. "I bought them months ago in Western Australia." 

The knife and spray carried a maximum penalty of 14 years imprisonment. 

Was I aware that I was carrying prohibited weapons? Of course not. They were buried in the bottom of my backpack, along with an assortment of ephemera like the lid of a lipstick, stray tickets, unused tissues and a head-torch. The pocket knife was understandable; it was the pepper spray that needed explaining.

I’d bought it in a Western Australian camping store at the behest of a very helpful shop attendant. I had told the assistant how I was worried about my upcoming trip into the mining belt of WA: I was a woman travelling alone for six weeks, going to places without phone reception in a male-dominated area. "Why not get some pepper spray?" he suggested, handing me a cylindrical canister. It was small, almost cute and came in white for men and pink for the ladies. "For use against wild animals," I read on the packaging.  

Perfect.

I immediately bought one (white, of course). And although I never used it, I loved having it. 

I had purchased a rare feeling of invulnerability.

The security guard took my details, and told me that he would forward the matter to police. But somewhere, in the back of my white, middle-class mind, I didn’t believe anything would happen.

The police would have to realise it had all been an innocent mistake. Surely it was clear that I was not the type of person who would pepper-spray the Magistrate. But then who was? Why should I get a tap on the wrist when a Lebanese man in the same circumstances would probably face charges?

But the question should go back further than this. Why did I feel the need to carry pepper spray in the first place? If the community does not protect women from violence, then why should we be punished for seeking to protect ourselves?

Months passed, and I forgot all about it. Then one day out of the blue, I got a phone call from my father. "Claudia! What’s happened? The police have called us and said that they’re looking for you. Have you done something?" I instantly thought that someone must have stolen my car. We laughed about the improbability of police searching for me and I hung up and called the number he had been given. 

"Finally!" said a female constable, "We’ve been looking for you. Did you have an incident at Parramatta Local Court recently where you had a pocket knife and some… some…"

"Some pepper spray?" I interrupted. "Oh, I was such an idiot, I’d completely forgotten it was there," I explained. She murmured her sympathies -- of course she understood. Who knows what’s in the bottom of their bag? All the same, I would have to come in and have a ‘chat’. 

Like many writers, I have a law degree and should have realised that an invitation to ‘chat’ to police means a formal interview where you would want legal representation. But I didn’t. She seemed so friendly. I told her I’d see her the next day on my way to a bush-walk in the Blue Mountains. 

I don’t think I ever took the matter seriously until the moment when the constable led me into a grey windowless room with two other officers and confiscated my backpack. She wrote down every word I said in her notebook. 

I left the station feeling bewildered. "You’re a clear case for a Section 10," she reassured me as I walked out the door. "It’s when you plead guilty but the conviction is not recorded as it’s your first offence and an honest mistake." I thanked her, but was still convinced that someone at a higher level would drop the charge. Police have discretion, after all. And if it’s an honest mistake, then why pursue the matter at all?

My summons came in a fat white envelope two months later at 10am. The hearing would be in one week. The police officer told me that I’d get a Section 10. "But if you don’t turn up, a warrant will be issued for your arrest." His smile was broad and emotionless. I tore the envelope open and studied the offences. 'Carrying a knife in court premises' was for the pocket knife and 'Possessing a prohibited weapon’ was for the pepper spray.

I immediately called my best friend who works as a criminal lawyer at the Aboriginal Legal Centre. "Whoah!" he gasped. "These are serious charges. You should have the conviction quashed, but we need to be prepared. I’ll represent you next week."

From this point on, I ceased living my life and entered an anxiety-stricken parallel world. I slept fitfully and would wake in a twist of sweat-soaked sheets. I lost my appetite. I stopped working and spent my time gathering references and researching my case.

I found that pepper spray is legal in Western Australia. In 2003, Justice Christine Wheeler had ruled that those who feared they were at risk of attack could use it in self-defence. She even singled out women walking alone at night as the kind of people who might want it.

But in New South Wales, it falls under the same category of offence as carrying nunchucks, bombs, swords and yes, cross-bows. The Courts have decided that there is no right to carry weapons for self-defence in the absence of imminent harm, which means then that there is no way women can prepare to defend themselves other than at the immediate moment of their being attacked.                                                   

Three days before my hearing, my friend called me. "I can’t represent you," he said. "My practicing certificate tethers me to the Aboriginal Legal Service. You’ll have to find someone else. I’m sorry."

Frantic with worry, I began calling criminal barristers. The cheapest was $1,000 and the most expensive around $3,000. This was to stand up and say that I was guilty, but that I was a nice person and should get a Section 10. 

"But I really just need you as a buffer between me and the magistrate," I pleaded with one barrister who had the voice of a hard-boiled crime hero. "You reckon?" he roared. "Lady, you are going to get smashed up there. Firstly, you have a law degree so you can’t plead ignorance of the law. Secondly, you brought the mace into New South Wales. And thirdly, you’re a writer. Magistrates HATE writers. If you get some of them on a bad day, they will SMASH you."

I tried to remain composed. "This seems odd," I said. "I have a friend who works in criminal law and both he and the police said that I would mostly likely get a Section 10. And now you are telling me that I’ll probably ‘get smashed’..." Before I could finish my sentence, he began bellowing again: "How DARE you imply that I am contradicting your legal advice!"

"Oh, I am not implying anything. I am being very explicit here."

"Well, I don’t know if I can work with someone with your attitude."

"Likewise," I said, hanging up the phone. His income depended upon my terror.

But I was rattled. What if he was right? What if I was found guilty and fined? This would mean that I could never travel to America and never work with children. From the perspective of my career, it would be disastrous.

On the day before my hearing, I ran into a friend who also works in criminal law. He gave me a list of three female magistrates who would look favourably upon me, and three who would most definitely not. If I got one of the ‘bad ones’, then I was to ask for an adjournment and he could represent me in a week.

I arrived at Court on the day of my trial dressed in a blue below-the-knee dress and sensible flats. I was a picture of demure conservatism.

I registered my name and saw that I had Magistrate Barry -- the one who my friend had described as a 'feminist civil libertarian'. Perfect! I’d go ahead with the hearing and represent myself. 

Court is mostly about waiting. Time stretches in vast swathes, and fear dissipates quickly into boredom. There were drug offences, a one-punch offence and a woman charged with assaulting a police officer. Finally, my name was called. 

"Claudia Fleurs!" boomed the magistrate. I rushed to the microphone, head-bowed and back bent in submission, as I’d practiced. "Yes, your honour?" 

"I AM SHOCKED!"

"I know, your honour, I’m sorry. It was a stupid thing to do and was really a product of my vague…"

"No, I am shocked that you are here. You don’t belong here. I don’t know why the police have pursued it as far as they have. This is clearly an innocent mistake."

I didn’t know what to do. I looked up at her with a mixture of confusion and relief. My face, which had been fixed in a mask of regret, cracked into a half-smile. 

At best, I thought that I would get a lecture on the importance of public safety. But here she was, not just declaring my innocence but chastising the police. "You are a victim of over-vigilant policing," she continued. "I am sorry for wasting your time. This is not the kind of offence that belongs in Court." Waves of relief rushed through me. My half-smile beamed wide and my whole body straightened. I wanted to hug her, to invite her to drinks afterwards.  

She dismissed the matter, I thanked her and dashed up the stairs and out of the courtroom, collapsing into the chairs in the foyer.

Should women be able to carry pepper spray to use for self-defence? The arguments against this go back to the foundations of liberalism: we give the state a monopoly on the use of violence and in turn the state promises to protect us from violence. There’s also the issue that weapons used in self-defence are seen as exacerbating violent situations rather than quelling them. 

I don’t buy either argument. The figures speak for themselves: one in three women around the globe have experienced violence, those who speak out about it are socially censured and victims of sexual violence rarely obtain redress from the law. If women like myself decide that we need to protect ourselves from violence, then surely this says more about our patriarchal society than the women who suffer because of it.

16 comments

  • Thank goodness for a sensible judge!

    Some years ago, our daughter had to travel to and from Uni via Schofields station (the isolated old location before the recent upgrade). On late start/finish nights (limited nearby parking all filled) she would have to park up to 1 km away in dark side streets.

    As an electrical engineer, I WAS going to build her a mini taser (not enough to injure; just a solid "hands-off" sting), however I changed my mind after checking the legal ramifications.

    I opted to meet her on those nights and drive her from the train to her car.

    Commenter
    Mario G.
    Location
    Sydney
    Date and time
    July 24, 2014, 11:28AM
    • God, what a horrible situation. I was discussing the issue of the way women can feel forced to protect themselves with two friends a couple of weeks ago. One mentioned that due to a recent attempted abduction in her suburb, she no longer felt safe walking to her local shops. I gigglingly confessed that I take a craft knife with me if I walk my dog alone in the evening, and our other friend admitted that she had carrying her car keys in weapon configuration down to a fine art. While we were all a bit sheepish over our 'paranoia', it was saddening to realise how pervasively women fear for their safety. The thing that we all realised simultaneously is that not one of our male partners would have any idea that we take these kinds of precautions, let alone feel compelled to do the same themselves.

      Commenter
      Bambina
      Location
      Melbourne
      Date and time
      July 24, 2014, 11:33AM
      • Bambina I'm not sure if you realise it but men are actually almost twice as likely as women to be violently assaulted according to ABS figures. I can assure you that there are plenty of men who do take precautions, although admittedly generally not to the same degree as women do.

        We don't solely have a problem with violence against women, we have a problem with violence against everyone.

        Commenter
        Hurrow
        Date and time
        July 24, 2014, 2:15PM
      • I would not be so sure about that. I have two teenager (late) and they are well aware of what can happen with random "king hit" attacks and other violence and they do take care to protect themselves.

        Commenter
        Bev
        Date and time
        July 24, 2014, 3:12PM
    • For me this is a no brainer, women SHOULD be able to carry pepper spray... I'm 5' 4" and ok... I've give it up 65kg (yes... I like food too much)... and I'd be no match for a guy.

      I can't see myself going around looking to pick fights with pepper spray... actually I'd probably inflict more injury with the set of keys I usual carry in my hands at night than a can of pepper spray... but I also suspect the keys wouldn't give me to the time to run... at least pepper spray would give me that.

      Its time for pepper spray to be legal for women for self defence... as the last time I checked... you don't get warning to know you're in imminent danger before someone attacks you.

      Commenter
      cuteclaudia
      Date and time
      July 24, 2014, 12:00PM
      • Until our inadequate legal system can protect women from violence, they should be allowed to carry pepper or mace spray

        Commenter
        Lady
        Location
        Melbourne
        Date and time
        July 24, 2014, 12:42PM
      • I find it strange that pepper spray is categorised the same as lethal weapons like swords, crossbows and nun-chucks. There is no way you could inflict the same amount of damage with mace as you could with sword, surely?! Don't the cops use pepper spray specifically as an alternative to lethal force?

        Commenter
        Donna Joy
        Date and time
        July 24, 2014, 1:43PM
      • The categorisation is not by the lethality, it is by the means it allows a person to 'take the law into their own hands'. Officials of the State, both police and elected officials, do not want to allow the public any means to protect themselves.

        Unfortunately, police also have no official obligation to provide the protection to the public that they have been forced to surrender, only to prosecute offenders.

        Commenter
        Markus
        Location
        Canberra
        Date and time
        July 24, 2014, 3:48PM
    • Claudia, first of all, I'm glad you got off over what is a ridiculous charge! Secondly, your writing is lovely, it held me hooked from the first line and gripping the edges of the seat!
      It happens - when you don't routinely practice law despite having a law degree you don't automatically view every situation and circumstance, particularly given how wracked with panic and anxiety you would have been, its hard to sort of enter that objective or zen calm and just analyse the situation coolly.
      After the recent murders in Melbourne I was contemplating either taking up a martial arts (I wanted to punch myself for dropping martial arts mid-way when I was a teen because I didn't "like" it. Have a mid rank belt.) or carrying around pepper spray, until I did some research and found out it wasn't legal!

      Commenter
      Green Tea
      Location
      Melbourne
      Date and time
      July 24, 2014, 1:15PM
      • I beg to differ.
        Bringing weapons into a court complex (for whatever the reason) is an incredibly serious offence. As a former court official apparently my safety is of no consequence. Why should a female journalist (who also has a practising certificate) be any less of a danger than a long haired bikie? Perhaps the modern way is to judge people solely on appearances?
        Thank goodness for the "jowly and officious, puffed up with a kind of petty self-importance"
        security guard who called you by the respectful "Ma'am" and was performing his duty. Was he carrying too much weight about his face? Surely his appearance shouldn't be in issue here?
        Shopping around for a favourable female magistrate? Minimising your own culpability with illusions of a Section 10 finding?
        It was not the fault of the court security staff for doing their job, or the police. You happily bought the pepper spray, felt a feeling of invincibility whilst carrying it, yet wouldn't accept the folly of bringing this weapon into a court complex...
        Claudia, I accept you meant no malice in bringing the pepper spray into the court. Indeed, I am sure you didn't even realise it was there. But "white middle class" journalists with law degrees have been known do commit crimes, and it seems you are blaming everyone involved in your matter between the court official finding the stuff to the magistrate dismissing the matter; rather than acknowledging you did a very stupid thing and should be grateful it worked out the way it did.
        It's your fault, deal with it and move on.

        Commenter
        RS Man
        Date and time
        July 24, 2014, 1:18PM

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