Unauthorised Impairment Of Data Held In Computer Disk, Credit Card Or Other Device

In NSW, unauthorised impairment of data held in a computer disk, credit card or other device carries a maximum penalty of imprisonment for 2 years.

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
• Fine
• Section 10A
• Conditional Release Order (CRO)
• Section 10

The Offence Of Unauthorised Impairment Of Data Held In A Computer Disk

The offence of ‘unauthorised impairment of data held in a computer disk, credit card or other device’ is set out in section 308I of the Crimes Act 1900 which states: “A person: (a) who causes any unauthorised impairment of the reliability, security or operation of any data held on a computer disk, credit card or other device used to store data by electronic means, and (b) who knows that the impairment is unauthorised, and (c) who intends to cause that impairment, is guilty of an offence.”

What Actions Might Constitute Unauthorised Impairment Of Data Held In A Computer Disk?

• Section 308B of the same act sets out the definition of ‘unauthorised 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 impairment if your conduct substantially contributes to that impairment.
  • This section covers data, which is information in any form, in a computer disk, credit card or other device, which means that the section covers a broad range of electronic devices.
    • Section 308 defines “data storage device” as: “any thing containing or designed to contain data for use by a computer.”
    • Some examples of devices under this section include: internal or external hard drives, USBs, file servers or disks.

What The Police Must Prove

To convict you of “unauthorised impairment of data held in a computer disk, credit card or other device”, the Police must prove beyond reasonable doubt that you?

• Caused an unauthorised impairment of the reliability/security/operation of data;
• That data was held on a computer disk/credit card/device used to store data by electronic means; and
• You did so with intent to cause an impairment; and
• You did so knowing that that impairment was unauthorised.

Possible Defences For Unauthorised Impairment Of Data Held In A Computer Disk

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.

Which Court Will Hear Your Matter?

This offence is a summary offence. This means that the matter must be finalised in the Local Court before a Magistrate.

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.