Possession of Data with Intent to Commit Serious Computer Offence

Pleading Not Guilty

This offence is complicated and you should give careful consideration to all the evidence if you are charged with it. If you decide to plead not guilty, we can help you break down the elements of this charge and identify any weaknesses in the prosecution case. We can also assist you with questions you might have such as:

• What is data?
• What is a serious computer offence?
• Police have taken my computer, can I get it back?

Pleading Guilty

Where you decide to plead guilty to this charge you should obtain a lawyer to assist you in your plea. This offence is not prosecuted often and a lawyer will assist your case by making submissions on the appropriate penalty and helping you to compile documentation that will assist you in getting the best possible outcome. We deal with complex pleas regularly and can assist you if you have been charged with this offence.

Which court will the case be heard in?

This offence is ordinarily heard in the Magistrates’ Court.

Examples of Possession of Data with Intent to Commit Serious Computer Offence

• A person is in possession of a program that could impair data held in a computer. The person has sent multiple e-mails to associates demonstrating an intention to use this program maliciously.
• A person possesses data that they plan to use to cause an unauthorised computer function that will facilitate a theft.
• A person possess data that they plan to use to impair electronic communications to or from a computer.

What is the legal definition of Possession of Data with Intent to Commit Serious Computer Offence?

1. A person who is in possession or control of data—
   
   1. with the intention of committing a serious computer offence; or
   2. with the intention of facilitating the commission of a serious computer offence (whether by the person or by another person)—
      is guilty of an offence and liable to imprisonment for a term not exceeding 3 years.
2. In this section, a reference to a person having possession or control of data includes a reference to a person—
   
   1. having possession of a computer or data storage device that holds or contains the data; and
   2. having possession of a document in which the data is recorded; and
   3. having control of data held in a computer that is in the possession of another person (whether the computer is in Victoria or outside Victoria).
3. A person may be found guilty of an offence against this section even if committing the serious computer offence is impossible.
4. It is not an offence to attempt to commit an offence against this section.

Legislation

The relevant legislative provision for this offence is 247E of Crimes Act 1958 (Vic) (the Act).

Elements of the offence

To prove this charge the Prosecution must prove:

1. The accused is in possession or control of data; and
2. The accused intends on using the data to commit or facilitate the commission of a serious computer offence.

Element 1: The accused is in possession or control of data
An accused will be in possession or control of data when a person:¹

1. has possession of a computer or data storage device that holds or contains the data; or
2. has possession of a document in which the data is recorded; or
3. has control of data held in a computer that is in the possession of another person (whether the computer is in Victoria or outside Victoria).

‘Data’ means information in any form and any program or part of a program.²

‘Data held in a computer’ includes data entered or copied into the computer, data held in any removable data storage device for the time being in the computer and data held in a data storage device on a computer network of which the computer forms part.³

A ‘data storage device’ means anything (for example, a disk or file server) containing or designed to contain data for use by a computer.⁴

Element 2: The accused intends on using the data to commit or facilitate the commission of a serious computer offence
A serious computer offence means an offence against ss 247B, 247C or 247D of the Act.⁵

An offence against s 247B means knowingly causing an unauthorised computer function with the intention of committing or facilitating the commission of a serious offence.⁶ A ‘serious offence’ is an offence punishable by 5 years imprisonment or more on conviction for a first offence.⁷

An offence against s 247C means knowingly causing the unauthorised modification of data held in a computer intending the modification to impair access to, reliability, security or operation of any data held in a computer, or being reckless as to any such impairment.⁸

An offence against s 247D means knowingly causing any unauthorised impairment of electronic communication to or from a computer intending to impair electronic communication to or from the computer or being reckless as to any such impairment.⁹

The prosecution must prove that the accused intends to use the data to commit or facilitate the commission of a serious computer offence. It is not enough that the person is merely in possession of the data.

Can they prove you intended on committing a serious computer offence? 

It is not necessary for the prosecution to prove that the accused would actually be able to commit or facilitate the commission of a serious computer offence with the data in their possession or control. A person may be found guilty of this offence even if committing the serious computer offence is impossible.¹⁰

Defences

Defences to this charge ordinarily turn on some element of the offence not being made out. These defences include:

• The accused did not possess the data; and
• It is impossible to prove that the accused intended to use the data to commit a serious computer offence.

Other defences to this charge include duress and mental impairment.

You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has serious implications for you and should be made after proper discussions with a criminal lawyer.

Questions in cases like this

• Was the accused in possession of data?
• Is it clear that the accused intend to use the data to commit or facilitate the commission of a serious computer offence?

Maximum penalty for section 247E of the Crimes Act 1958

A person found guilty of Possession of Data with Intent to Commit Serious Computer Offence (s247E of the Crimes Act 1958) may be sentenced to a maximum penalty of 3 years imprisonment.