Cybercrime Lawyer Sydney

Where Cybercrime Offences Come From

Cybercrime and hacking offences in NSW are found in Part 10.7 of the Criminal Code Act 1995 (Commonwealth) and under Part 6 of the Crimes Act 1900 (NSW), beginning at section 308C. These provisions overlap in places, and prosecutors will often choose to proceed under whichever legislation best fits the alleged conduct and the seriousness of the harm caused. Because the offences sit across two different pieces of legislation, and because each state and territory has its own version of these laws, getting the charge right and the defence right requires a lawyer who works in this space regularly.

Conduct that is commonly prosecuted as a cybercrime or computer offence includes, but is not limited to:

• Unauthorised access to, or modification of, restricted data
• Impairing electronic communication
• Distributing malware or other malicious software
• Deleting or destroying data without authority
• Cyberstalking or using a carriage service to menace or harass
• Unauthorised use of another person’s computer or device

If you are unsure whether something you have done, or something you are accused of doing, falls within these categories, the team at Best Criminal Lawyers Sydney can talk you through it in a free, confidential consultation.

Is Accessing Someone Else’s Computer Without Permission an Offence?

Yes. Under section 308C of the Crimes Act 1900 (NSW), it is an offence to access a computer, or data held on a computer, without authority or to use it knowing that the access is unauthorised. Where the matter is dealt with in the Local Court, the maximum penalty is two years’ imprisonment. Where the conduct is considered a “serious computer offence”, and the matter proceeds to the District Court, the maximum penalty rises to ten years’ imprisonment.

Separately, section 308D makes it an offence to cause an unauthorised modification of data held on a computer, where the person knows the modification is unauthorised and intends to impair its reliability, security or accessibility.

At a Commonwealth level, section 477.1 of the Criminal Code sets out what the prosecution must establish, namely that:

• The accused intentionally caused unauthorised access, modification, or impairment of data or electronic communication; and
• The accused knew that access, modification or impairment was unauthorised; and
• The accused intended, by that conduct, to commit or facilitate a serious offence against Commonwealth, state or territory law.

The prosecution carries the burden of proving each of these elements beyond reasonable doubt, and a properly prepared defence will test every one of them.

Can Altering Someone’s Data Amount to a Computer Offence?

Modifying, deleting or adding to data held on another person’s device without their permission can be prosecuted under section 477.1 of the Criminal Code, even where the person responsible did not set out to cause serious harm. The penalty that applies is tied to the seriousness of the underlying offence the modification was intended to facilitate, and can range from several years’ imprisonment through to life imprisonment in the most serious cases.

Case example: Two office workers, frustrated with a colleague, access files stored on his work laptop without his knowledge and alter a set of photographs before forwarding them around the office as a prank. The colleague is later dismissed as a result. Despite there being no intention to cause the dismissal, both workers could be charged with unauthorised access under section 308C and unauthorised modification of data under section 477.1, exposing them to a term of imprisonment if the conduct is treated as a serious offence.

How a Cybercrime Prosecution Typically Unfolds

Investigation

Police, often working with specialist cybercrime units, gather digital evidence. Under the Cybercrime Act 2001, investigators have broad powers to search, seize and copy electronic devices and data as part of that process.

Arrest and charge

Where police form the view that there is sufficient evidence, the person is arrested and formally charged.

Bail

Depending on the seriousness of the alleged offence, the accused may be released on bail or remanded in custody pending court.

Court proceedings

The accused enters a plea. A not-guilty plea leads to a hearing or trial in either the Local Court or the District Court, depending on the offence.

Sentencing

If the charge is proven or a guilty plea is entered, the court determines a sentence having regard to the maximum penalty, the circumstances of the offending, and the person’s background.

Disclaimer: This information is general in nature and should not be relied on as legal advice. Every matter is assessed by the court on its own facts, and current listing times may vary. Speak with one of our criminal lawyers about your specific circumstances.