Cybercrime Series - Commonwealth serious computer offences
Cybercrime has come to encompass a broad range of offence categories. With ever-changing technology it has become increasingly sophisticated and its reach is transnational. Cybercrime encompasses crimes that are directed at computers and other similar technology which results in hacking, online fraud, distribution of child exploitation material online, money laundering and identify theft.
Because there are many offence categories that fall under cybercrime, there is a vast amount of legislation that deals with specific offences. In NSW, there are both NSW offences and Commonwealth offences that cover this area.
Computer offences generally
In NSW, a person can be charged with computer offences under NSW legislation or Commonwealth legislation. Computer offences are sometimes also called computer hacking offences.
In this article, we’ll take a look at Serious Computer Offences under the Commonwealth Criminal Code.
Under Commonwealth legislation, computer offences are generally concerned with access to and modification of restricted data. The Commonwealth Criminal Code deals with two categories of computer offences: Serious computer offencesand Other computer offences.
The Criminal Code provides a number of definitions for different parts of the offences. The definitions themselves can be somewhat complex and at times circular.
Serious computer offences
Division 477 of the Criminal Code deals with serious computer offences. There are three offences in this category:
Unauthorised access, modification or impairment with intent to commit a serious offence – section 477.1
Unauthorised modification of data to cause impairment – section 477.2
Unauthorised impairment of electronic communication – section 477.3
What is unauthorised access, modification or impairment to restricted data?
The Criminal Code provides the following definitions at section 461.1
Access to data held in a computer means:
(a) The display of the data by the computer or any other output of the data from the computer; or
(b) The copying or moving of the data to any other place in the computer or to a data storage device; or
(c) In the case of a program - the execution of the program.
Modification of data in a computer means:
(a) The alteration or removal of the data; or
(b) An addition to the data.
In section 476.2, access, modification or impairment is unauthorised if the person doing those things is not entitled to cause that access, modification or impairment.
Interestingly, the fact that a person may have an ulterior motive for causing access, modification or impairment does not of itself make it unauthorised and the Criminal Code specifically provides for this.
So, getting to the offence provisions, then.
The first serious computer offence under the Criminal Code is under section 477.1 – Unauthorised access, modification or impairment with intent to commit a serious offence. In a prosecution against this section, the prosecution has to prove the following:
The person either caused unauthorised access to or modification of data held in a computer, or unauthorised impairment of electronic communication to or from a computer;
The person knew that the access, modification or impairment is unauthorised; and
The person has an intention to commit, or facilitate the commission of a “serious offence” against a law of the Commonwealth, a State or a Territory by virtue of that access, modification or impairment.
Of note is that the prosecution does not have to prove that the person either knew that the offence that there was an intention to commit was a “serious offence” or an offence against a law of the Commonwealth, a State or a Territory. Also, a person may be found guilty of the offence even if the “serious offence” would be impossible to commit.
To break that down, the prosecution needs to show:
The person caused access to data (or modification or impairment);
The person knew it was unauthorised
The person did it intending to do something
That something is a serious offence.
For the purposes of this offence provision, a serious offence is an offence which carries a maximum penalty of imprisonment of 5 or more years.
The maximum penalty that applies to this offence is the maximum penalty that applies to the “serious offence” alleged. Depending on the “serious offence” alleged, this could mean that the maximum penalty can be anywhere between 5 years imprisonment and life imprisonment.
The next offence under the Criminal Code is Unauthorised impairment of electronic communication under section 477.2
For that offence, the prosecution has to prove:
A person caused any unauthorised modification of data held in a computer; and
The person knows it is unauthorised; and
The person is reckless about whether the modification impairs or will impair either:
Access to that or any other data held in any computer; or
The reliability, security or operation of any such data.
The maximum penalty is 10 years imprisonment and a person can be found guilty whether or not there is actual impairment to the data or the reliability, security or operation of the data.
The last offence provision in this part of the Criminal Code is unauthorised impairment of electronic communication under section 477.3. For this provision, the prosecution needs to prove:
A person caused any unauthorised impairment of electronic communication to or from a computer; and
The person knows that the impairment is unauthorised.
The maximum penalty for this offence is also 10 years imprisonment.
In a trial before a jury, a person be charged with an offence under section 477.2 and can be found not guilty of that offence but guilty of the offence under section 477.3. The opposite is also the case for a matter where the prosecution have charged an offence under section 477.3 – if the jury is not satisfied that the Crown have proven each of the elements beyond reasonable doubt, they can look at the elements of the section 477.2 offence and if satisfied beyond reasonable doubt that the evidence proves those elements, they can return a verdict of guilty even if the person has never been charged with that offence.
Come back soon for more articles on cybercrime. We will cover other Commonwealth computer offences, NSW offences and other areas of cybercrime.
Got a question?
If you have questions about computer offences or you have been charged or being investigated, contact us to discuss your matter on 02 8590 6084. Getting advice early can make a big a difference.
This is a general guide only and does not constitute legal advice.