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Court of Criminal Appeal 15 April 1999

R v Stevens

[1999] NSWCCA 69

Fraud & dishonesty
CRIMINAL LAW SENTENCING COMPUTER CRIME SENTENCE NOT EXCESSIVE

Citation: R v Stevens [1999] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 15 April 1999
Judge(s): Stein JA, Studdert J, Smart AJ

Background

The appellant was an internet consultant who, in April 1995, used stolen login credentials to gain unauthorised access to the computer network of AUSNet Services Pty Limited, an internet service provider with sites in Sydney and Melbourne. On 17 April 1995, he altered AUSNet's home page on the World Wide Web to display a message falsely claiming that customer credit card details had been stolen and distributed to hackers worldwide. The message was deliberately designed to damage AUSNet's reputation and harm its business.

The appellant pleaded guilty in the District Court to one charge of intentionally inserting data into a computer without authority or lawful excuse, contrary to s 76E(a) of the Commonwealth Crimes Act. Eight additional offences were taken into account under s 16BA of the same Act. Those additional offences included unauthorised access to stored data, including commercially sensitive files and user accounts on AUSNet's systems.

District Court Judge Backhouse QC sentenced the appellant to a total term of three years imprisonment, with eighteen months to be served in custody and the balance subject to release on recognizance. The appellant sought leave to appeal to the Court of Criminal Appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentence of three years imprisonment, with eighteen months in custody, was manifestly excessive having regard to the objective and subjective circumstances of the case.
  • Whether the sentencing judge erred in her approach, including in the weight given to deterrence and the eight additional offences taken into account.
  • Whether earlier decisions on comparable computer offences established a sentencing pattern that the judge was required to follow.

Decision

Studdert J, with whom Stein JA and Smart AJ agreed, dismissed the appeal. His Honour found that the sentencing judge had correctly identified the relevant considerations: the maximum penalty of ten years imprisonment, the gravity of the offences, the objective and subjective circumstances of the case, and the need to reflect both specific and general deterrence in the sentence.

On the question of comparable sentences, the Court found that the earlier decisions cited by the appellant (two unreported Victorian County Court decisions and one NSW decision involving erasure of data) were of limited assistance. Judge Backhouse had correctly observed that no settled pattern of sentencing had yet emerged for offences under Part VIA of the Commonwealth Crimes Act, and the Victorian cases were distinguishable on both their objective and subjective facts.

The Court emphasised the seriousness with which it viewed offences of this kind. Computer technology occupied a crucial role in modern society, and the potential for harm through deliberate computer abuse was significant. The Court noted that the offences were carried out with conscious malice and were intended to, and did, cause real damage to AUSNet and its customers. Deterrence of both the offender and others tempted to commit similar offences was a legitimate and necessary sentencing consideration.

No error was established in the sentence imposed by Judge Backhouse, and the Court was not persuaded that the sentence was manifestly excessive in all the circumstances.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a three-year sentence with eighteen months in custody for a serious computer hacking offence under the Commonwealth Crimes Act was not manifestly excessive.
  • The maximum penalty of ten years imprisonment under s 76E(a) of the Commonwealth Crimes Act was a significant indicator of the legislature's view of the gravity of such offences.
  • Where no settled pattern of sentencing has been established for a category of offence, a sentencing court is required to have regard to the maximum penalty and the particular objective and subjective circumstances of the case rather than treating earlier decisions as establishing a tariff.
  • Deterrence, both of the individual offender and of others who might be tempted to engage in similar conduct, is a weighty sentencing consideration in cases involving deliberate and malicious computer abuse.
  • The Court of Criminal Appeal noted that society's increasing dependence on computer technology heightens the potential harm caused by unauthorised access and data manipulation offences, a factor directly relevant to the weight given to general deterrence.

Legislation and Cases Referenced

Legislation:
- Commonwealth Crimes Act, ss 16BA, 26D, 76D(1), 76D(2)(b)(viii), 76E(a)

Cases:
- R v Caldwell (unreported, NSWCCA, 3 March 1993)
- R v Even-Sham & Woodcock (unreported, Victorian County Court, 4 October 1993)
- R v Dedio (unreported, Victorian County Court, 20 September 1995)