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  • Computer Crime Offences and Penalties in Victoria (VIC)

    In Victoria, the law takes offences that a person commits through electronic and computer means seriously.

    These crimes can be challenging to regulate, as technology has increased the ease of disseminating data and information across the globe. This ease in data transmission and the amount of damage it can cause are some of the reasons why the State of Victoria heavily regulates computer crimes. Such crimes also carry heavy penalties, including terms of imprisonment.

    Computer offences and their penalties are legislated in the Crimes Act 1958 (Vic) for the state of Victoria.

    This article will look at the various computer crime offences and their penalties in Victoria.

    If an individual is convicted in a South Australian court for a Computer Crime offence, the offence will show up as a disclosable court outcome (DCO) on a criminal background check in Victoria.

    The offence will be disclosed on a criminal history check in accordance with the Spent Convictions Scheme in Victoria.

    Possession of Data With Intent

    Under Section 247E of the Crimes Act 1958 (Vic), it is a crime to possess or control data with the intent to either:

    • Commit a serious computer offence; or
    • Facilitate the commission of a severe computer offence.

    Therefore, before the Court can convict a person of possession of data with intent, the prosecution must prove that:

    • The accused has or controls data, i.e., information; and
    • The defendant intends to use the data to carry out or facilitate committing a serious computer offence.

    Possessing or controlling data as used by the legislation means that the accused either has:

    • possession of a computer or any data storage device that contains the data; or
    • possession of a document which recorded the data; or
    • control of data contained in a computer in another person's possession (whether the computer is in or outside Victoria).

    The penalty for this crime is a maximum of 3 years imprisonment.

    Supply of Data With Intent

    As per Section 247F of the Crimes Act 1958 (Vic), producing, obtaining, or supplying data with intent to carry out a serious computer offence is a crime. Upon conviction, an offender is liable to a maximum of 3 years in prison.

    However, before such conviction can happen, the prosecution must prove that the accused either made, supplied, or got data. They must also prove that the accused did this act to commit a computer crime. It is irrelevant that committing that computer offence would have been impossible.

    Unauthorised Access With Intent

    Section 247B of the Crimes Act 1958 (Vic) makes it a crime to cause an unauthorised computer function with the intent to commit or facilitate the commission of a serious offence. This computer function could be accessing, modifying, or impairing data.

    To prove this charge, the prosecution must show that the accused:

    • Caused any unauthorised computer function by accessing, modifying, or impairing data that a computer holds.
    • Knew that the operation was unauthorised
    • Intended to commit or facilitate the commission of a serious offence

    The penalty for this crime is a minimum of five years in prison.

    Unauthorised Access of Restricted Data

    Under Section 247G of the Crimes Act 1958 (Vic), it is a crime to access or modify restricted data. A person who commits this offence is liable to a maximum of two years imprisonment.

    The elements the prosecution must prove for this charge to hold in court include:

    • The accused accessed or modified data
    • The data in question is restricted
    • The accused knew that access to the information was restricted
    • The accused intended to access or modify the restricted data

    Unauthorised Impairment of Electronic Communication

    According to Section 247D of the Crimes Act 1958 (Vic), unauthorised impairment of electronic communication is a crime in Victoria. Therefore, the prosecution is responsible for proving that an accused committed this offence. In fulfilling this duty, they must show that:

    • The defendant caused an impairment of electronic communication from or to a computer. This element means that the accused must have done something that impaired electronic communication.
    • The impairment was unauthorised.
    • The accused knew that they were not authorised to cause the impairment of the electronic communication. Lack of knowledge as to their unauthorised use would be a defence for this charge.
    • The accused either intended for their actions to impair the electronic communication or were reckless as to that consequence.

    The penalty for the offence of unauthorised impairment of electronic communication is a crime in Victoria is five to ten years in prison.

    Unauthorised Modification of Data

    As per Section 247D of the Crimes Act 1958 (Vic), modifying computer data without proper authorisation is a crime in Victoria. Upon conviction, an offender is liable to at least five years imprisonment. Nonetheless, the maximum punishment for this offence is ten years of incarceration.

    The Court will only find a person guilty of this offence if the prosecution can prove the following beyond a reasonable doubt:

    • The accused caused a modification of computer data
    • The accused was not authorised to make that modification
    • The accused knew that they were not allowed to cause the modification
    • By the modification, the accused intended to impair access to or hinder any computer data security, reliability, or operation or was reckless as to such impairment.

    Possible Defences to Cyber Crimes

    Several defences are available to any person facing computer offence charges. One such defence is mistaken identity. Here, the accused can assert that they did not commit the crime. For example, they may claim that another person had access to their device that was used to perpetrate the offence.

    Another possible defence for the crimes involving authorisation is asserting that the accused had clearance or permission to carry out the act in question. This consent may be express or implied. An example is when the defendant was an employee, agent, or sub-contractor.

    For possession of data with intent, a possible defence is lack of possession. The accused claims that they did not have the data in dispute.

    Lack of intent is also another defence to computer crimes. The defendant can assert that it is impossible to prove that they intended to use the data for nefarious purposes.

    Other defences to these charges are duress and mental impairment. The defence of duress will only stand if the accused was facing an imminent threat and had no other way of escape.

    Bottom Line

    Any person facing computer crime charges cannot afford to take such a matter lightly. These offences carry severe penalties, all of which include jail time. The first course of action to take in such circumstances is to contact an experienced legal practitioner.

    Will a Computer Crime Offence in Victoria (Vic) show up on a Nationally Coordinated Criminal History Check?

    If an individual is found guilty of a Computer Crime offence in Victoria, the offence will show up as a disclosable court outcome (DCO) on the results of their police clearance check.

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

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