A computer crime is a criminal offence that relates to the use of computers. In 1997 the Queensland Criminal Code introduced Section 408E entitled ‘Computer Hacking and Misuse’. This provision states that a person who uses a restricted computer without the consent of the computer’s controller commits an offence. Further, if the person causes or intends to cause detriment or damage, or gains or intends to gain a benefit, the person commits a crime.
If a person:
- causes detriment or damage; or
- gains a benefit or intends to gain a benefit for any person, to the value of more than $5,000; or
- intends to commit an indictable offence
then the person commits a crime.
What do these terms mean?
- ‘Computer’ is defined in the Code as meaning all or part of a computer, computer system or computer network and includes all external devices connected to the computer in any way or capable of communicating with each other as part of a system or network.
- ‘Restricted computer’ is defined as a computer for which a device, code or particular sequences of electronic impulses is necessary in order to gain access to or to use the computer and the controller withholds or takes steps to withhold access to the device, or knowledge of access code or sequence, from other persons.
- ‘Controller’ means a person who has the right to control the computer’s use.
- ‘Use’ of a restricted computer includes accessing or altering any information stored in the device or communicating information directly or indirectly to or from the restricted computer or to cause a virus to become installed or to otherwise affect the computer.
- ‘Damage’ is defined as damage to any computer hardware or software any alteration, addition, removal or loss of, information.
- ‘Detriment’ includes pecuniary or other detriments to any person.
The penalties for the offence of Computer Hacking and Misuse are as follows:
|Person uses a restricted computer without the consent of the computer’s controller||Two years imprisonment|
|Person causes or intends to cause detriment or damage or obtains a benefit||Five years imprisonment|
|Person causes a detriment or damage or obtains a benefit for any person to the value of more than $5,000 |
intends to commit an indictable offence
|10 years imprisonment|
Whether the court imposes a heavy fine or an actual term of imprisonment will depend on the circumstances of the offence, any mitigating factors and the offender’s history.
There are a number of possible defences available to a person who has committed a computer crime. These might include that the person did not use the computer, that the computer was not restricted or that the person had the consent of the computer’s controller to use the computer.
Other defences might include:
- That the person did not cause or intend to cause detriment or damage by using the computer;
- That the person did not gain or intend to gain a benefit for any other person;
- That the person did not cause more than $5,000 damage, detriment or benefit; or
- That the person did not intend to commit an indictable offence.
Are there other computer-related crimes?
The Commonwealth Criminal Code Act 1995 details federal offences relating to using a carriage service. A ‘carriage service’ is defined by Section 7 of the Telecommunications Act 1997 as a service for carrying communications by means of guided or unguided electromagnetic energy. In simpler terms, it includes any type of telephone, internet and email service.
A person commits a crime if they use a carriage service to do any of the following:
|Using a carriage service to...||Maximum penalty|
|Make a threat to kill||10 years imprisonment|
|Make a hoax threat||10 years imprisonment|
|Menace, harass or cause offence||Three years imprisonment|
|Access child pornography material||15 years imprisonment|
How to avoid being a victim of computer crime
These days more people are using computer technology as it becomes more available and affordable. This has led to an increase in rates of computer crime and in particular, an increase in the misuse of confidential, personal or sensitive information. It is therefore essential to ensure that the computer is secured and controlled and that it can only be accessed with a password.
What to do if you are charged with an offence
If questioned by police in relation to a computer crime, you should exercise your right to silence and seek immediate legal advice. You should be aware that any information that you provide to police can be used as evidence against you.
If you require legal advice about a computer crime or in any other legal matter, please contact Go To Court Lawyers.
By Temeka Sue-Tin, Solicitor