Computer Crime Offences and Penalties in New South Wales (NSW)

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There are various definitions of computer crimes in Australia and within the state of New South Wales. Generally, it involves any abnormal and potentially harmful actions or programs a person performs with a computer. It ranges from dispersing dangerous viruses to cyberstalking and digital fraud.

The Crimes Act 1900 (NSW) describes and stipulates penalties for computer offences. The punishments can be against persons, groups or corporations where each person is sentenced separately according to the law. Part 6 of the Act provides a general description and punishments for computer based offences.

If an individual is convicted for a Computer Crime offence, the offence will show up as a disclosable court outcome (DCO) on a Nationally Coordinated Criminal History Check.

Penalties for Computer Crimes

The scope of technology is so enormous that it now includes data collection, processing, storage, software, programs, A.I, intelligent machines, networks and other digital tools. Computer crimes can often be grievous depending on the people affected or the worth of the asset destroyed or affected.

Possession of data with the intent to commit a serious offence

Section 308F of the Crimes Act 1900 (NSW) states a crime where a person takes charge/control/possession of data to commit a serious crime. It also includes where the accused was in possession of such data to facilitate the commission of such offence.

It is a crime that carries a maximum punishment of 3 years imprisonment.

Subsection 2 describes possession of the data as;

• The accused was in possession or control of;
• The computer or data centre that contains a digital information/document that the data was recorded
• Had authority over a person who has access or control over the data used for the offence

A person can be guilty of the offence even if it is unlikely for the offence to occur. However, it may note an offence for a person to commit such a crime under the law.

Manufacturing, supplying or obtaining data with intent to commit an offence

Section 308G of the Crimes Act 1900 (NSW) describes an offence where a person supplies, produces or deals with data to commit a severe computer offence. It is also a crime if the person by such action facilitated a computer offence either intentionally or not.

The person is guilty of an offence in this section, which has punishment reaching three years of imprisonment.

Subsection 2 of this section defines all actions that constitute this offence to means;

• The person produces, supplies, or obtains data that is present in a computer or data storage device.
• Produce or participate in supplying a digital copy of the data.

The accused person can be guilty of this offence even if it may be impossible to commit such an offence. However, it is not considered an offence if the person only attempted to commit the offence.

Unauthorised access or dealing with a document to commit an indictable offence

It is an offence for a person who knowingly commits or causes an unauthorised computer function. It includes cases where the person knows the action is unauthorised and intends to commit an indictable offence.

The court finds a person guilty of this offence; they can impose penalties if they commit the original crime.

It is considered an unauthorised function if the person;

• Had unauthorised access to the data in the computer,
• Dealt with the data in an illegal manner or where they are not in charge
• Interacted with the computer or data in a way that would impair the communication

Unauthorised changing of data

It is a severe offence for a person to modify the data held in a computer to alter the information. It includes where the person knowingly causes any alteration to the data either by their direct or indirect action with the computer.

Section 308D of the Crimes Act 1900 (NSW) considers it a serious offence, especially where the accused dealt with the data deliberately to impair the information. It is an offence that incurs as much as ten years imprisonment.

The court may also consider this charge an alternative to section 195 of the Act (Destroying or damaging property).

Unauthorised alteration of electronic competition

It is an offence for a person to cause any digital attack or impairment to electronic communication. For this section, a person is guilty if they are aware that such alteration was illegal and unpermitted and purposely attempted to severe the communication.

It is an offence that carries imprisonment for about ten years.

Altering restricted or private data (summary offence)

It is an offence to modify the data held in a restricted data canter or private computer. It is an offence, especially when the person knows that the modification is illegal and intends to distort the information.

If the offence is treated summarily, it will incur penalties of up to 2 years imprisonment. Subsection 4 stipulates that a court proceeding for this charge must be entered within three years of the date of occurrence.

Illegal alteration of data held in digital devices (Computer disk, credit card, and other)

It is a severe offence to compromise the reliability or veracity of computer software or information by altering the data in the storage. Section 308I of the Act defines a crime where the accused person;

• Knows such action was illegal with that computer device
• It intends to distort the data stored

It incurs the maximum penalty of 2 years and is dealt with summarily courts.

Definition of Key terms

The beginning of section 308 of the Crimes Act 1900 (NSW) defines critical terms in defining what a computer/cybercrime is; these terms are essential in making or defending a computer offence charge in court. Some of these vital terms include;

• Data

It means any program, information, or digital asset that includes essential details and codes.

• Data held in a computer

There are various methods of storing data in a computer, including;

Entering or copying data into the computer or other data held in the computer temporarily.

• Data storage device

There are various devices for storing data, including a computer hard disk, a rewritable flash, huge data diskettes or other aids in a data centre.

• To access a data

Accessing data means interacting with a computer to get hidden or uncommon information stored in the computer. It also includes copying or moving data to any place distinct from the initial storage point.

• Modification/alteration of data

It involves any action where the accused person distorts, changes, includes or removes any data from the original document. It also includes where the person deals with the data in a manner that will destroy the documents.

• Impairment

The Act used impairment to signify a case where a person prevents the law's communication, storage, or use of data.

Other Computer/digital/cyber Crimes

There are lots of actions or offences that constitute a cybercrime offence under the Act. While they may not be mainstream or considered as cyber crimes by default. Some of them include;

• ✔ Forgery offences

It is a crime for a someone to intentionally use a false document or apply such document in a manner that;

Induces the public to interact with such a genuine document as if it were original. And because of such;

• They obtained the advantage of a property belonging to another,
• They obtained financial advantage or caused loss to another person
• Enjoyed certain public benefits not due to them

The offence of forgery incurs a punishment of up to 10 years imprisonment under section 254 of the Act.

• ✔ Holding false document

It is offensive for a person to intentionally be in possession of a false document or other sensitive data. It is especially an offence where the person attempts to use the data or document to;

• Induce some people to accept them as authentic, and it causes
• Illegal appropriation of a property belonging to others
• Financial disadvantage to others or illegal gains to the person
• Influence a public exercise or gains

It is an offence that incurs as much as ten years imprisonment.

• ✔ Holding or creating equipment for making false documents

It is an offence for a person to hold or possess material or equipment that will create a false document. It is an offence that the accused person intended and knew that the material could aid the making of a false document.

It is an offense that incurs a penalty as severe as ten years imprisonment.

It is also an offence If the person only holds the material or equipment. And they know it can be used to create such false documents. It is an offence that incurs the penalty of 3 years imprisonment.

It is also offensive for a person to hold or possess such a document hoping that another will use it to create a false document. It is an offence that incurs as much as three years imprisonment.

• ✔ False or misleading document

A person is guilty of an offence if they give false information to another, and they give such information knowing;

• It is false and detrimental to the original matter,
• Omits essential issues in a case relating to the document

And the document is useful for;

• Public authority,
• Given to a person exercising or performing any form of legal authority or power.
• Applies such information compliance to the State.

It is an offence that attracts up to 2 years imprisonment or 200 penalty units in fine amounts.

Will a Computer Crime Offence show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a Computer Crime offence, the offence will show up as a disclosable court outcome (DCO) on the results of their Nationally Coordinated Criminal History Check.

Individuals can obtain a nationally coordinated criminal history check online via the Australian National Character Check - ANCC® website.

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