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Unauthorised access with intent

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In NSW, unauthorised access, modification or impairment with intent to commit a serious indictable offence is an offence. The maximum penalty prescribed for this offence is the penalty which would have been applicable for that serious indictable offence in NSW.

In NSW, a court can impose any of the following penalties for this charge.


THE OFFENCE:

The offence of 'unauthorised access with intent' is set out in section 308C of the Crimes Act 1900 which states: "A person who causes any unauthorised computer function: (a) knowing it is unauthorised, and (b) with the intention of committing a serious indictable offence, or facilitating the commission of a serious indictable offence (whether by the person or by another person), is guilty of an offence."

WHAT ACTIONS MIGHT CONSTITUTE "UNAUTHORISED ACCESS WITH INTENT"?

  • Section 308B of the same act sets out the definition of 'unauthorised access, modification or impairment,' by stating:-
    • A person is unauthorised if they are not entitled, within the ordinary meaning of the word, to cause that access, modification or impairment.
    • You will be taken to 'cause' unauthorised access, modification or impairment if your conduct substantially contributes to the same.
  • This section is enlivened by conduct that constitutes:-
    • Accessing or modifying any data held in any computer; or
    • Impairing any electronic to or from any computer.
    • This is very broad and covers not only changing/deleting data or preventing data and communication from being passed on, but also merely accessing that data.
  • Establishing what a 'serious indictable offence' is can become confusing as computers can transmit data over large areas, and across borders very easily. This section states that the serious indictable offence includes offences, even if committed in other jurisdictions, would be an offence in NSW.
    • 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.

WHAT THE POLICE MUST PROVE:

To convict you of "unauthorised access, modification or impairment with intent to commit serious indictable offence", the Police must prove beyond reasonable doubt that you:

  • Caused an unauthorised computer function;
  • You did so knowing that it was unauthorised; and
  • You did that with the intention of committing or facilitating the commission of a serious indictable offence by yourself or another person.

POSSIBLE DEFENCES FOR 'UNAUTHORISED ACCESS WITH INTENT?'

Section 308B(2) states that the 'access, modification or impairment' is not unauthorised by virtue of the person having an ulterior purpose for the action. This has been tested in the courts, however, and limitations placed on that rule. For example, it would protect an officer accessing data who has a legitimate entitlement to do so, even though it is done with an ulterior purpose. However, should the officer be accessing the data outside the course of his or her duties, then they cannot rely on this section as a defence.

Furthermore, under section 308(5) it is not an offence to attempt to commit an offence under this section.

WHICH COURT WILL HEAR YOUR MATTER?

If the serious indictable offence alleged carries a maximum penalty of ten years imprisonment of less, then this offence is a Table 1 offence. If that is the case, it is likely that the matter will 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:

Jail: This is the most serious penalty and involves full time detention in a correctional facility. Read more.

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.

Fines: When deciding the amount of a fine the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10A: A section 10A is a conviction, with no other penalty attached to it. 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.

Why Choose Armstrong Legal?

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