Crimes (Property Damage and Computer Offences) Act 2003 (Vic)

Crimes (Property Damage and Computer Offences)

Act 2003

Act No. 10/2003

TABLE OF PROVISIONS

Section	Page
PART 1—PRELIMINARY	1

1.	Purpose	1
2.	Commencement	2
3.	Principal Act	2

PART 2—AMENDMENTS TO THE CRIMES ACT 1958 3

4. New section 201A inserted 3

201A. Intentionally or recklessly causing a bushfire 3

5.	Insertion of new Subdivision (6) in Division 3 of Part I	4
(6) Computer Offences	4

247A.	Interpretation	4
247B.	Unauthorised access, modification or impairment with
intent to commit serious offence	7
247C.	Unauthorised modification of data to cause impairment	8
247D.	Unauthorised impairment of electronic communication	9
247E.	Possession of data with intent to commit serious
computer offence	9
247F.	Producing, supplying or obtaining data with intent to
commit serious computer offence	10

247G.	Unauthorised access to or modification of restricted data 11
247H.	Unauthorised impairment of data held in computer disk,
credit card or other device 11
247I.	Extra-territorial operation of offences 12

6.	Insertion of new Subdivision (7) in Division 3 of Part I	12
(7) Sabotage	12

247J. Interpretation 12

247K. Sabotage 14

247L. Threats to sabotage 15

7. New sections 428 and 429 inserted 16

428.        Alternative verdict for charges of unauthorised

modification of data to cause impairment 16

429.        Alternative verdict for charges of unauthorised

impairment of electronic communication 16

i

Section Page

8.	Consequential amendments	17
9.	Transitional provision	17

597.        Transitional provision—Crimes (Property Damage

and Computer Offences) Act 2003 17

PART 3—AMENDMENTS TO THE BAIL ACT 1977 AND OTHER

CONSEQUENTIAL AMENDMENTS 18

10.	Amendment to the Bail Act 1977	18
11.	Transitional provision—amendment to the Bail Act 1977	18
12.	Consequential amendment to the Magistrates' Court Act 1989	18

37A. Computer Offences 18

13.	Consequential amendment to the Sentencing Act 1991	18
14.	Transitional provision—consequential amendment to the
Sentencing Act 1991	19

127.        Transitional provision—Crimes (Property Damage

and Computer Offences) Act 2003 19

15. Repeal of section 9A of the Summary Offences Act 1966 19

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ENDNOTES 20

ii

Victoria

No. 10 of 2003

Crimes (Property Damage and Computer Offences) Act 2003†

[Assented to 6 May 2003]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purpose

The main purpose of this Act is—

(a) to amend the Crimes Act 1958 to create offences relating to bushfires, computers and sabotage; and

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s. 2 Part 1—Preliminary

(b) to amend the Bail Act 1977 to include the offence of arson causing death as an offence in respect of which there is a presumption against bail.

2. Commencement

This Act comes into operation on the day after the day on which it receives the Royal Assent.

3. Principal Act

See:

Act No.	In this Act, the Crimes Act 1958 is called the
6231/1958.	Principal Act.
Reprint No. 16 as at 1 January
2002
and
amending Act Nos 45/2001, 11/2002, 16/2002 and 35/2002. LawToday: dpc.vic. gov.au

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Part 2—Amendments to the Crimes Act 1958 s. 4

PART 2—AMENDMENTS TO THE CRIMES ACT 1958

4. New section 201A inserted

After section 201 of the Principal Act insert—

'201A. Intentionally or recklessly causing a

bushfire

(1) A person who—

(a)	intentionally or recklessly causes a fire; and
(b)	is reckless as to the spread of the fire to vegetation on property belonging to another—

is guilty of an offence and liable to level 4

imprisonment (15 years maximum).

(2) For the purposes of sub-section (1)(b),

circumstances in which a person is not to be taken to be reckless as to the spread of a fire include the following—

(a)	the person caused the fire in the course of carrying out a fire prevention, fire suppression or other land management activity; and
(b)	at the time the activity was carried out—

(i) made by or under an Act or by a
Code of Practice approved under
an Act, that regulated or otherwise
applied to the carrying out of the
activity and the person in carrying
out that activity acted in

there was in force a provision and

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(ii) conduct in carrying out the

the person believed that his or her regard to all of the circumstances.

(3) For the purposes of sub-section

(2)(b)(ii) it is sufficient that a person
honestly believed that the conduct was

justified.

(4) In this section—

(a) a reference to causing a fire includes—

(i) lighting a fire;

(ii) maintaining a fire;

(iii)

failing to contain a fire, by another person or the fire is beyond the control of the person who lit the fire;

(b) "spread of the fire" means spread of the fire beyond the capacity of the person who caused

the fire to extinguish it.'.

5.  Insertion of new Subdivision (6) in Division 3 of Part I

After Subdivision (5) of Division 3 of Part I of the

Principal Act insert—

'(6) Computer Offences

247A. Interpretation

(1) In this Subdivision—

"access", in relation to data held in a

computer, means—

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(a)	the display of the data by the computer or any other output of the data from the computer; or
(b)	the copying or moving of the data to any other place in the computer or to a data storage device; or
(c)	in the case of a program, the execution of the program;

"data" includes—

(a) information in any form; and

(b) any program or part of a program;

"data held in a computer" includes—

(a)	data entered or copied into the computer; and
(b)	data held in any removable data storage device for the time being in the computer; and
(c)	data held in a data storage device on a computer network of which the computer forms part;

"data storage device" means any thing (for

example, a disk or file server)
containing or designed to contain data
for use by a computer;

"electronic communication" means a

communication of information in any form by means of guided or unguided electromagnetic energy;

"impairment", in relation to electronic

communication to or from a computer,
includes—

(a) the prevention of any such communication; and

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(b) communication on an electronic

the impairment of any such computer—

but does not include a mere interception
of any such communication;

"modification", in relation to data held in a computer, means—

(a) the alteration or removal of the data; or

(b) an addition to the data;

"serious computer offence" means—

(a)	an offence against section 247B, 247C or 247D; or
(b)	that is an offence in that jurisdiction and that would constitute an offence against

conduct in another jurisdiction conduct occurred in Victoria;

"unauthorised computer function" means any of the following—

(a)	any unauthorised access to data held in a computer; or
(b)	any unauthorised modification of data held in a computer; or
(c)	any unauthorised impairment of electronic communication to or from a computer.

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(2) In this Subdivision, a reference to access to data, modification of data or impairment of electronic communication is limited to

access, modification or impairment caused
(whether directly or indirectly) by the

execution of a function of a computer.

(3) For the purposes of this Subdivision, access
to data, modification of data or impairment

of electronic communication by a person—

(a)	is unauthorised if the person is not entitled to cause that access, modification or impairment;
(b)	is not unauthorised merely because the person has an ulterior purpose for that action.

(4) For the purposes of an offence against this

Subdivision, a person causes an unauthorised
computer function if the person's conduct
substantially contributes to the unauthorised
computer function.

247B. Unauthorised access, modification or

impairment with intent to commit serious

offence

(1) A person who causes any unauthorised

computer function—

(a) knowing it is unauthorised; and

(b) serious offence or facilitating the

with the intention of committing a (whether by the person or by another person)—

is guilty of an offence and liable to the same
maximum penalty as applies to the
commission of the serious offence in
Victoria.

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(2) In this section "serious offence" means—

(a)	an offence in Victoria punishable on conviction for a first offence with imprisonment for a term of 5 years or more; or
(b)	an offence in any other jurisdiction that would be punishable on conviction for a first offence with imprisonment for a term of 5 years or more if committed in Victoria.

(3) A person may be found guilty of an offence against this section—

(a)	even if committing the serious offence is impossible; or
(b)	whether the serious offence is to be committed at the time of the unauthorised conduct or at a later time.

(4) It is not an offence to attempt to commit an

offence against this section.

247C. Unauthorised modification of data to cause

impairment

A person who—

(a)	causes any unauthorised modification of data held in a computer; and
(b)	knows that the modification is unauthorised; and
(c)	intends by the modification to impair access to, or to impair the reliability, security or operation of, any data held
in a computer or is reckless as to any such impairment—

is guilty of an offence and liable to level 5
imprisonment (10 years maximum).

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247D. Unauthorised impairment of electronic

communication

A person who—

(a)	causes any unauthorised impairment of electronic communication to or from a computer; and
(b)	knows that the impairment is unauthorised; and
(c)

intends to impair electronic or is reckless as to any such impairment—

is guilty of an offence and liable to level 5

imprisonment (10 years maximum).

247E. Possession of data with intent to commit

serious computer offence

(1) A person who is in possession or control of

data—

(a)	with the intention of committing a serious computer offence; or
(b)	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—

(a) having possession of a computer or data storage device that holds or contains the data; and

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(b)	having possession of a document in which the data is recorded; and
(c)	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.

247F. Producing, supplying or obtaining data with intent to commit serious computer offence

(1) A person who produces, supplies or obtains

data—

(a)	with the intention of committing a serious computer offence; or
(b)	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 producing, supplying or obtaining data includes a reference to the person—

(a)	producing, supplying or obtaining data held in a computer or contained in a data storage device; and
(b)	producing, supplying or obtaining a document in which the data is recorded.

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(3) A person may be found guilty of an offence

against this section even if committing the
serious computer offence is impossible.

247G. Unauthorised access to or modification of

restricted data

(1) A person who—

(a)	causes any unauthorised access to or modification of restricted data held in a computer; and
(b)	knows that the access or modification is unauthorised; and
(c)	intends to cause the access or modification—

is guilty of an offence and liable to level 7

imprisonment (2 years maximum).

(2) An offence against this section is a summary

offence.

(3) In this section "restricted data" means data

held in a computer to which access is restricted by an access control system associated with a function of the computer.

247H. Unauthorised impairment of data held in

computer disk, credit card or other device

(1) A person who—

(a)	causes any unauthorised impairment of the reliability, security or operation of data held on a computer disk, credit card or other device used to store data by electronic means; and
(b)	knows that the impairment is unauthorised; and

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(c) intends to cause the impairment—

is guilty of an offence and liable to level 7

imprisonment (2 years maximum).

(2) An offence against this section is a summary

offence.

(3) For the purposes of this section, impairment of reliability, security or operation of data is unauthorised if the person is not entitled to

cause the impairment.

247I. Extra-territorial operation of offences

(1) It is immaterial that some or all of the

(2) It is immaterial that the computer or device	conduct constituting an offence against this long as the computer or device used to store data by electronic means affected by the conduct was in Victoria at the time at which the conduct occurred.
used to store data by electronic means affected by some or all of the conduct constituting an offence against this
Subdivision was outside Victoria at the time the conduct occurred, so long as that conduct occurred in Victoria.'.

6.  Insertion of new Subdivision (7) in Division 3 of Part I

At the end of Division 3 of Part I of the Principal

Act insert—

'(7) Sabotage

247J. Interpretation

(1) In this Subdivision—

"property offence" means—

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(a)	an offence against Subdivision (1) of this Division or Division 4; or
(b)	conduct in another jurisdiction that is an offence in that jurisdiction and that would constitute an offence against Subdivision (1) of this Division or Division 4 if the conduct occurred in Victoria;

"public facility" means any of the following (whether publicly or privately owned)—

(a)	a government facility, including premises used by government employees in connection with official duties;
(b)	facility, including a facility providing or distributing water, sewerage, energy, fuel, communication or other

a public infrastructure of, the public;

(c)	a public information system, including a system used to generate, send, receive, store or otherwise process electronic communications;
(d)	a public transport facility, including a conveyance used to transport people or goods;

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(e) a public place, including any premises, land or water open to the public;

"unauthorised computer function"

has the same meaning as in
Subdivision (6).

(2) In this Subdivision "damage", in relation to a public facility, means—

(a)	cause damage to the facility or any part of the facility; or
(b)	cause disruption to the use or operation of the facility.

(3) For the purposes of an offence against this Subdivision, a person causes any damage or disruption if the person's

conduct substantially contributes to the

damage or disruption.

247K. Sabotage

A person who—

(a) committing a property offence or by

damages a public facility by function; and

(b) intends to cause—

(i) major disruption to government
functions; or

(ii)  major disruption to the use of services by the public; or

(iii) major economic loss—

is guilty of an offence and liable to level 2
imprisonment (25 years maximum).

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247L. Threats to sabotage

(1) A person who—

(a)	makes to another person a threat to damage a public facility by committing a property offence or by causing an unauthorised computer function; and
(b)	intends that person to fear that the threat will be carried out and will cause—

(i) major disruption to government
functions; or

(ii)  major disruption to the use of services by the public; or

(iii) major economic loss—

is guilty of an offence and liable to level 4
imprisonment (15 years maximum).

(2) In the prosecution of an offence against this

section it is not necessary to prove that the
person threatened actually feared that the
threat would be carried out.

(3) For the purposes of this section—

(a)	a threat may be made by any conduct and may be explicit or implicit, conditional or unconditional; and
(b)	a threat to a person includes a threat to a group of persons; and
(c)	fear that a threat will be carried out includes apprehension that it will be carried out.'.

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s. 7 Part 2—Amendments to the Crimes Act 1958

7. New sections 428 and 429 inserted

After section 427 of the Principal Act insert—

"428. Alternative verdict for charges of

unauthorised modification of data to cause
impairment

If on the trial of a person charged with an offence against section 247C the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that he or she is guilty of—

(a) an offence under section 197(1); or

(b) an offence under section 247D— the jury may acquit the accused of the offence charged and find him or her guilty of

whichever of those offences they are

satisfied that he or she is guilty and he or she

is liable to punishment accordingly.

429.

Alternative verdict for charges of communication

If on the trial of a person charged with an offence against section 247D the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that he or she is guilty of—

(a) an offence under section 197(1); or

(b) an offence under section 247C— the jury may acquit the accused of the offence charged and find him or her guilty of

whichever of those offences they are
satisfied that he or she is guilty and he or she
is liable to punishment accordingly.".

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Part 2—Amendments to the Crimes Act 1958 s. 8

8. Consequential amendments

In item 17 of Schedule 8 to the Principal Act—

(a) in paragraph (b) for "death)." substitute "death);";

(b) after paragraph (b) insert—

"(c) section 201A (intentionally or recklessly causing a bushfire);

(d) section 247K (sabotage);

(e) section 247L (threats to sabotage).".

9. Transitional provision

After section 596 of the Principal Act insert—

"597. Transitional provision—Crimes (Property

Damage and Computer Offences) Act 2003

(1) The amendments of this Act made by the

Crimes (Property Damage and Computer Offences) Act 2003 apply only to offences alleged to have been committed on or after the commencement of that Act.

(2) For the purposes of sub-section (1), if an

offence is alleged to have been committed
between two dates, one before and one after
the commencement of the Crimes (Property
Damage and Computer Offences) Act
2003, the offence is alleged to have been

committed before that commencement.".

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Act No. 10/2003

Part 3—Amendments to the Bail Act 1977 and other Consequential

s. 10 Amendments

PART 3—AMENDMENTS TO THE BAIL ACT 1977 AND

OTHER CONSEQUENTIAL AMENDMENTS

10. Amendment to the Bail Act 1977

After section 4(4)(c) of the Bail Act 1977 insert—

"(caa) with an offence of arson causing death under section 197A of the Crimes Act 1958; or".

11. Transitional provision—amendment to the Bail Act 1977

After section 34(4) of the Bail Act 1977 insert—

"(5) The amendment of section 4(4) made by

section 10 of the Crimes (Property Damage
and Computer Offences) Act 2003 applies
only with respect to a charge for an offence
filed on or after the commencement of that
Act.".

12. Consequential amendment to the Magistrates' Court Act 1989

After item 37 of Schedule 4 to the Magistrates'

Court Act 1989 insert—

"37A. Computer Offences

(1) Offences under section 247B of the Crimes Act 1958,
if the maximum penalty does not exceed level 5
imprisonment.

(2) Offences under sections 247E and 247F of the

Crimes Act 1958.".

13. Consequential amendment to the Sentencing Act 1991

After clause 5(a)(ii) of Schedule 1 to the

Sentencing Act 1991 insert—

"(iii) section 201A (intentionally or recklessly causing a

bushfire);".

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Part 3—Amendments to the Bail Act 1977 and other Consequential

Amendments s. 14

14. Transitional provision—consequential amendment to
the Sentencing Act 1991

After section 126B of the Sentencing Act 1991 insert—

"127. Transitional provision—Crimes (Property

Damage and Computer Offences) Act 2003

(1) The amendment of this Act made by

section 13 of the Crimes (Property Damage
and Computer Offences) Act 2003 applies
only to offences alleged to have been
committed on or after the commencement of

that Act.

(2) For the purposes of sub-section (1), if an

offence is alleged to have been committed
between two dates, one before and one after
the commencement of the Crimes (Property
Damage and Computer Offences) Act
2003, the offence is alleged to have been
committed before that commencement.".

15. Repeal of section 9A of the Summary Offences Act 1966

Section 9A of the Summary Offences Act 1966 is repealed.

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Crimes (Property Damage and Computer Offences) Act 2003

Act No. 10/2003

Endnotes

ENDNOTES

†

Minister's second reading speech—

Legislative Council: 27 February 2003

Legislative Assembly: 25 March 2003

The long title for the Bill for this Act was "to amend the Crimes Act
1958 to create offences relating to bushfires, computers and sabotage, to
amend the Bail Act 1977 with respect to the granting of bail on a charge
of arson causing death, to make consequential amendments to other Acts
and for other purposes."