Possession of data with intent to commit a serious computer offence
In NSW, possession of data with intent to commit a serious computer offence is an offence that carries a maximum penalty of imprisonment for three (3) years. In NSW, a court can impose any of the following penalties for this charge:
In NSW, a court can impose any of the following penalties for this charge.
- Prison Sentence
- Home Detention
- Intensive Corrections Order (ICO)
- Suspended Sentence
- Community Service Order (CSO)
- Community Corrections Orders (CCO)
- Good Behaviour Bond
- Section 10A
- Conditional Release Order (CRO)
- Section 10
The Offence Of Possession Of Data With Intent To Commit Serious Computer Offence:
The offence of ‘possession of data with intent to commit serious computer offence’ is set out in section 308F of the Crimes Act 1900 which states: “A person who is in possession or control of data: (a) with the intention of committing a serious computer offence, or (b) with the intention of facilitating the commission of a serious computer offence (whether by the person or by another person), is guilty of an offence.”
What Actions Might Constitute “Possession Of Data With Intent To Commit Serious Computer Offence”?
- The same section gives an idea of what “possession or control of data” is, by stating that it includes:-
- Possession of a computer or data storage device holding or containing the data or a document in which the data is recorded, and
- Control of data held in a computer that is in the possession of another person (in this jurisdiction or outside).
- The word ‘intent’ is also an important one to note. This means that, even if the actual commission of the intended offence does not occur or is impossible, if the intention is there, you can be charged under this section.
- For the purposes of this section what constitutes a serious computer offence is listed as offences under:-
- Section 308C: Unauthorised access, modification or impairment with intent to commit serious indictable offence; or
- Section 308D: Unauthorised modification of data with intent to cause impairment; or
- Section 308E: Unauthorised impairment of electronic communication; or
- Conduct in another jurisdiction, which is an offence in that jurisdiction and would constitute an offence under one of the above sections if committed in NSW.
- It is also relevant that the ‘serious computer offence’ intended does not have to be committed by you. It is still an offence under this section if your actions are used to facilitate a serious computer offence by another person.
What The Police Must Prove:
To convict you of “possession of data with intent to commit serious computer offence”, the Police must prove beyond reasonable doubt that you:
- Were in possession or control of data;
- With the intent to commit or facilitate the commission of;
- A serious computer offence, whether by you or by another person.
Possible Defences For This Charge:
Under section 308F(4) it is not an offence to attempt to commit an offence under this section.
It is also be a defence to show that you have no intention of committing or facilitating the commission of a serious computer offence.
Which Court Will Hear Your Matter?
This offence is a Table 1 offence. This means that your matter will likely be dealt with in the Local Court. However, either the Prosecutor or the Defendant can elect to have the matter dealt with in the District Court. If they do so, this will give rise to harsher penalties.
Types of penalties:
Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.
Intensive Corrections Order (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.
Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.
Community Service Order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.
Good Behaviour Bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.
Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.
Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.
Section 10 avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.
WHERE TO NEXT?
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.