Computer Crime Offences and Penalties in Queensland (QLD)

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In present times, the crime rate of computer offences in Australia has reached a new peak. There has been a rising growth of malicious technology and its ability to harm individuals and businesses.

The Australian Cyber Security Centre reports that at least one computer crime is reported approximately every eight minutes in Australia.

Therefore, it is no surprise that the State of Queensland considers computer crime offences seriously and has put up measures to prevent more occurrences. The State, in Section 408E of the Criminal Code Act 1899 (Qld), penalises computer hacking and misuse.

This article will take an in-depth look at this offence, pointing out the elements, penalties, and possible defences.

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

What are Computer Crimes?

Generally, computer crimes refer to a range of offences that involve technology, typically a computer and a network. They are usually of two categories:

• Offences against computers and other digital devices. Examples of these crimes include denial of service and computer hacking.
• Offences where people use computers or other digital devices to commit regular crimes. Examples include cyberstalking, internet and email fraud, identity theft, online distribution of prohibited content and phishing.

The Law on Computer Hacking and Misuse in Queensland

Section 408E of the Criminal Code Act 1899 (Qld), which creates the crime of computer hacking and misuse, provides that:

• Any individual who uses a restricted computer without the computer's controller permission commits an offence.
• If the person causes damage or intends to do so, the individual commits a crime.
• Similarly, if the person gains a benefit or intends to gain one, they also commit an offence.
• If the damage or benefit that the accused causes or gains are to the tune of above $5,000, it becomes an aggravated crime.
• If the accused intended to commit an indictable offence in Queensland, it also aggravates the crime.
• It is a defence to anyone facing charges under this section if the person was authorised, justified, or excused by the law to use the restricted computer.

Definition of Terms

Defining the terms that the law in Section 408E of the Criminal Code uses is essential to proving or debunking the elements of the offence. Below are definitions of some important terms contained in the section.

• Computer: As per Section 408E of the Criminal Code Act 1899 (Qld), this word refers to part or all of a computer, computer network, or computer system. It includes every external device connected to the computer in any way. Devices that can communicate with each other as part of a network or system also fall under the definition of a computer.
• Controller: This means an individual with the right to control the computer's use.
• A restricted computer is any computer that uses a code, device, or specific sequences of electronic impulses to limit access to it or its use. The controller must also have withheld access or taken steps to withhold knowledge of the access code or sequence or access to the device from other persons.
• Using a restricted computer includes altering or accessing any data that the device contains. It also means communicating information indirectly or directly to or from the restricted computer. Installing, using, or facilitating the installation of a virus to affect the computer also falls within the purview of “using.”
• Detriment refers to any financial or other detriments to any individual.
• Damage refers to any damage to computer software or hardware. It also includes any alteration, removal, addition, or loss of information.

Elements of the Offence of Computer Hacking and Misuse

As in most criminal trials, the burden is on the prosecution, typically the police, to prove that the accused committed the offence of computer hacking and misuse. They must prove certain elements of this crime beyond a reasonable doubt to establish their case in Court. These elements include showing that:

• The accused used a restricted computer
• The accused did so without the computer controller's permission

In cases of aggravated computer hacking and misuse, the police must prove the above element as well as any of the following:

• The accused caused or meant to cause damage or detriment
• The defendant gained or intended to gain a benefit for a person
• The damage, benefit, or detriment is of a value of above $5,000
• The accused meant to commit an indictable offence.

Penalties for the Crime of Computer Hacking or Misuse in Queensland

Section 408E of the Criminal Code Act 1899 (Qld) makes computer hacking or misuse a crime. And depending on the facts of the case, computer hacking charges carry a maximum penalty of between two and ten years of imprisonment.

Simply using a restricted computer without the permission of the computer's controller carries a maximum punishment of two years incarceration.

However, when the unauthorised use caused and was done with the intention to cause damage or detriment, the maximum penalty increases to five years. The same applies when the unauthorised use was to gain or with the intent to gain a benefit.

Similarly, a person that caused such damage or detriment or obtained such a benefit to the value of above $5,000 faces a penalty of at most ten years in prison. The same applies to anyone who intended to commit an indictable offence by using a computer without authorisation.

Defences to Computer Hacking or Misuse Charges

Various defences are available to anyone facing computer hacking or misuse charges in Queensland. These defences include asserting that:

• The defendant did not use the computer
• The defendant had the permission of the computer's controller
• The defendant had a reasonable and honest belief that they had the computer's controller consent to use it
• The computer was not restricted
• The defendant did not cause or mean to cause damage or detriment by their actions.
• The defendant did not gain or mean to make a gain for themselves or others
• The accused did not mean to commit an indictable offence
• The defendant did not cause damage, detriment or benefit of more than $5,000

Jurisdiction - What Court Will Hear Computer Hacking and Misuse Charges in Queensland?

In Queensland, the offence of computer hacking and misuse is indictable. As such, the District Court generally has jurisdiction over such matters. However, the parties can elect to commence the trial in the Magistrates Court. The case will eventually proceed to the District Court for indictment and finalisation if they do.

Conviction - Will the Court Record the Conviction?

The Queensland Court that sentences the offender has the discretion to decide whether or not to record a conviction for the offence of computer hacking and misuse. In making this decision, the Court will consider certain factors. According to Section 12 of the Penalties and Sentences Act 1992 (Qld), these factors include:

• The nature of the crime
• The offender's age and character
• The effect that recording the conviction will have on the offender's:
1. chances of finding employment
2. social or economic well being

How to Avoid Being a Victim of Cyber Crime

Given the alarming rate of computer crimes, it is essential to take steps to protect yourself when using the internet. Some of these steps include:

• Use the security settings: Secure your devices by setting a PIN or password that controls access to it. That way, others will not be able to access your information easily. Also, ensure to log off or lock your computer when away from it.
• Install current security software and accept regular updates: Having the latest antivirus system helps protect your tech devices against malware, viruses, and other online threats.
• Avoid using the same passcodes on various websites. Also, never use your name or date of birth as a password.
• Do not remain online when you are not using the internet connection. If your device is always connected, it increases the likelihood of hackers and virus scans invading your computer.
• Never click on suspicious links. Hackers can access your information through posts, tweets, emails, and online advertising. Delete anything that looks suspicious.
• Limit public Wi-Fi use. Computer hackers can connect to public Wi-Fi and watch what you do, including the passwords you enter while connected. So, you can completely avoid using public Wi-Fi. If you have to, do not enter your private information or use apps that have passwords.
• Hackers can easily and watch your every move while you're connected. To keep your information safe, either don't use public Wi-Fi or avoid entering when you are on public Wi-Fi.

Despite the security measures taken, anyone can still fall victim to cybercrime. In such cases, you can report to the local police or the Australian Cyber Security Centre (ACSC) via Report Cyber. The latter is an initiative of the Australian government created to improve cyber security in the country.

Once the ACSC receives a report, they access it to decide whether to refer it to law enforcement agencies for investigation. This decision will depend on:

• The type and severity of the incident
• The location of the suspect
• The amount of information on the offender contained in the report

Bottom Line

Section 408E of the Criminal Code Act 1899 (Qld) contains the various penalties for computer crimes in Queensland. While the severity of the punishments depends on the circumstances surrounding the case, each maximum penalty involves jail time.

Convicted persons also typically face other social and economic consequences other than the actual sentence the Court gives. With these facts in mind, it is advisable for anyone facing computer hacking and misuse charges to seek legal representation immediately.

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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