Cybercrime and computer offences in NSW

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By Paul Gregoire and Ugur Nedim

A 15-year-old student named Jessie left her Bega school in early 2018, after she was bullied by another student, both in person and online. The girl’s parents felt they had no choice but to place their daughter in another school, as staff at the current one failed to take their complaints seriously.

Jessie was receiving multiple messages online suggesting that she take her own life and asserting that she didn’t deserve to have any friends. The girl dropped out of her netball team and left her part time job in an attempt to stop her tormentor, but the abuse continued.

The young woman went as far to show a senior teacher one of the abusive messages she’d received via the social media app Snapchat. However, the staff member didn’t take any action in regard to the insulting content of the message.

Indeed, Jessie’s parents felt that rather than take the bullying seriously, school authorities took the attitude that it was the family causing the issue. And this was all taking place as calls for more proactive policing of such behaviour were growing in the wake of another young student’s suicide.

Cyber harassment laws

On 21 November last year, NSW parliament passed an amendment bill that made changes to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act) to make certain that messages like the ones that Jessie was being sent can be prosecuted as a form of intimidation.

Section 7 of the Act was amended so that the definition of intimidation includes cyberbullying, as either conduct that amounts to “harassment or molestation” of a person, or an online approach that causes a person to fear for their own safety.

This includes the publication or transmission of offensive material over social media or via email. And section 8 of the Act was also altered, so that stalking includes “contacting or otherwise approaching a person using the internet or any other technologically assisted means”.

So, these forms of online harassment now fall under section 13 of the Act, which stipulates that “stalking or intimidation with intent to cause fear of physical or mental harm” is an offence that is punishable by up to 5 years imprisonment and/or a fine of $5,500.

NSW attorney general Mark Speakman explained in the bill’s second reading speech that it was dubbed “Dolly’s Law” as it was drafted in response to the death of 14-year-old Amy “Dolly” Everett. In January last year, she took her own life in the NT, after persistent bullying online and in person.

However, there were already a number of federal offences that were relevant in regard to cyberbullying. Most notably, section 474.17 of the Criminal Code (Cth), which makes “using a carriage service to menace, harass or cause offence” a crime punishable by up to 3 years prison.

The changing face of crime

The cyber harassment amendment bill passed by NSW parliament last year is part of an ongoing process by authorities to update criminal laws in order to keep abreast of new crimes that are emerging out of ever-developing technologies.

A mid-decade survey of 3,000 Australian adults found that half of them reported having been a victim of cyberbullying. And police have also been aware of a rising number of extortion cases involving people paying perpetrators to prevent them publishing content of a sexual nature online.

In the second half of 2017, NSW police launched its first stand-alone cybercrime squad, which was created to address the changing nature of crimes, especially those to do with child sexual abuse and cyber-fraud.

NSW police made 35 cybercrime-related arrests in 2017. And this more than doubled last year to a total of 73 arrests. The NSW Police Force states that increasingly crooks are moving to computers to commit offences, whilst traditional crimes like armed robbery are in decline.

Online criminal deception

One of the main online crimes that has been increasing exponentially over recent years is cyber-fraud. This type of offence can include email scams, identity theft, and phishing, which is posing as a reputable entity online in order to obtain someone’s personal information.

Deception is a key element of fraud. And section 192B of the Crimes Act 1900 (NSW) defines deception to include “conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make”.

While section 192E of the Act outlines that a person who uses deception to obtain property belonging to another or financial advantage or causes the financial disadvantage of another is guilty of fraud and can be sent to prison for up to 10 years.

Crimes relating to computers

Part 6 of the Crimes Act contains a number of criminal offences that relate directly to computers, which were inserted into the legislation in 2001. Section 308C outlines that using a computer to commit a serious indictable offence carries the same maximum penalty as the offence itself.

Section 308D makes the unauthorised modification of data with intent to cause impairment an offence, while section 308E makes the unauthorised impairment of electronic communication a crime. Both are punishable by up to 10 years imprisonment.

Under section 308F of the Crimes Act, the possession of data with the intent to commit a serious computer crime is an offence punishable by 3 years prison, and so is producing, supplying or obtaining data with the same intent, under section 308G.

Section 308H can see an offender imprisoned for up to 2 years for the unauthorised access to or modification of restricted data held in a computer, while section 308I can see an individual gaoled for the same time for the unauthorised impairment of data in a disk, a credit card or another device.

Enhanced domestic spying

In late 2010, the Australian Cybercrime Online Reporting Network was established by the federal government to allow victims of cybercrime to report these types of offences. However, it was replaced on 30 June this year by the Australian Cyber Security Centre (ACSC) reporting system.

The ACSC is hosted by the Australian Signals Directorate (ASD). The ASD is the nation’s international spying agency. And interestingly, home affairs minister Peter Dutton recently suggested to the ABC that this agency be allowed to start spying domestically in order to deal with local cyber threats.

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