Unauthorised access of restricted data

In NSW, unauthorised access to or modification of restricted data held in a computer is an offence that carries a maximum penalty of imprisonment of two (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 Access Of Restricted Data:

The offence of ‘unauthorised access to or modification of restricted data held in a computer’ is set out in section 308H of the Crimes Act 1900 which states: “A person who:

• causes any unauthorised access to or modification of restricted data held in a computer, and
• knows that the access or modification is unauthorised, and
• intends to cause that access or modification, is guilty of an offence”.

What Actions Might Constitute “Unauthorised Access Or Modification Of Restricted Data Held In A Computer?”

• As stipulated by subsection (3), this section only applies to restricted data. This is data held in a computer to which access is restricted by some form of access control system.
• Section 308B of the Crimes Act 1900 set out the definition of ‘unauthorised’, stating:-
  • You will be taken to have ’caused’ unauthorised access or modification if your conduct substantially contributes to the impairments.
  • A person is unauthorised if they are not entitled, within the ordinary meaning of the word, to cause that access or modification.
  • Case law in NSW suggests that to determine if you are authorised to access the data or not the Court will generally have to review the policy documents available. This is especially so if the conduct occurred during the course of your employment. For example, NSW Police’s Code of Conduct stipulates which files officers can access and the circumstances that they can access them.
• Section 308A of the same act defines “access” and “modification.”
  • “Access to data held in a computer” means:
    • The display of the data by the computer or any other output of the data from the computer;
    • The copying or moving of the data to any other place in the computer or to a data storage device; or
    • Execution of a program, if a program is involved.
  • “Modification of data held in a computer” involves altering or removing data as well as adding to the data.
• This offence is one that is drafted very widely. As a result it could include, but is not limited to actions such as:-
  • Accessing files that you did not have authority to access, even if you have authority to access the computer on which those files were stored;
  • Copying files to a USB stick or hard drive or even to another place within the same computer;
  • Allowing someone who did not have access to certain programs or files access to them through your behaviour; and
  • Deleting or adding to information or data on a computer without the authority to do so.

What The Police Must Prove:

To convict you of “unauthorised access or modification of restricted data held in a computer,” the Police must prove beyond reasonable doubt that you:-

• Caused unauthorised access to or modification of data held in a computer;
• You did so knowing that modification is unauthorised; and
• In doing so, you intended to cause that access or modification.

Possible Defences For This Charge:

Section 308B(2) states that the ‘access or modification’ 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 have been 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 subsection as a defence.

Which Court Will Hear Your Matter?

This offence is a summary offence and will be heard in the Local Court.

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.