Section 22(2) of the Cybercrime Code Act 2016 is the aggravated form of cyber bullying.
Section 22(2)
Where the offence under subsection (1) results in psychological or physical harm, the offender is guilty of a crime.
Penalty:
(a) child offender, subject to the Juvenile Justice Act 2014 — detention up to five years; or an ICT prohibition for the term of detention plus two years; or both;
(b) adult offender — imprisonment up to 25 years; or an ICT prohibition for the term of imprisonment plus two years; or both.
| s 22(1) | s 22(2) | |
|---|---|---|
| Classification | Misdemeanour | Crime |
| Adult | Up to 7 years | Up to 25 years |
| Child | Detention up to 3 years | Detention up to 5 years |
| ICT prohibition | Term imposed plus two years, as an alternative or in addition | |
| Fine | None available | |
| Triable summarily | Yes — both are in Schedule 2 | |
Seven years to twenty-five. That places aggravated cyber bullying alongside electronic fraud, child pornography, cyber extortion and cyber attack on critical infrastructure in the Act’s most serious band.
Note that the increase for a child offender is much smaller — three years to five — and remains detention subject to the Juvenile Justice Act 2014.
Compare the equivalent provision for adult victims: section 23(2) raises the adult maximum only to 10 years where harm results. Harm to a child is treated far more seriously.
“Psychological or physical harm”
The subsection names psychological harm before physical harm, and that ordering reflects reality. Online bullying rarely causes direct physical injury; its damage is to the child’s mental health.
By making psychological harm sufficient, section 22(2) removes an argument that would otherwise arise — that nothing physical happened, so no real harm was done.
Neither term is defined in section 2, so both carry their ordinary meanings, to be established on the evidence. In practice psychological harm will be proved through medical or psychological evidence, school records, changes in behaviour, and the accounts of parents and teachers.
Physical harm may arise indirectly — self-harm, or injury sustained in circumstances brought about by the bullying.
The subsection requires only that the subsection (1) offence results in harm. The offender need not have intended harm.
The mental element is carried over from subsection (1), which is satisfied by acting intentionally or recklessly for one of the seven purposes — bullying, intimidating, threatening, demeaning, ridiculing, stalking, or causing emotional distress.
So a person who joins a mocking thread about a child, recklessly as to causing distress, and whose participation contributes to psychological harm, faces the aggravated offence. That is a serious exposure for conduct that participants may regard as trivial.
Where many people take part
Section 22(1) is committed by anyone who initiates, facilitates or participates in the communication, and by anyone acting for the purpose of supporting such repeated acts.
Section 22(2) then applies to the offence under subsection (1) where it results in harm. On its terms, each person who committed the subsection (1) offence is exposed to the aggravated penalty where harm resulted.
Questions of individual causation and culpability will be matters for the court on sentence, applying section 3(1)(c), which imports the Criminal Code provisions on punishment including sections 18 and 19.
But the structural message is clear: there is no safety in numbers. A person who adds one comment to a campaign that damages a child is within the offence.
The ICT prohibition
For both child and adult offenders, the court may impose prohibition from accessing and using ICTs or electronic systems or devices for the term of detention or imprisonment imposed plus an additional two years — instead of, or as well as, the custodial term.
For a bullying offence that is a targeted response: it removes the means by which the offence was committed. For a child offender in particular, a prohibition rather than detention may be the proportionate outcome — though a ban on using electronic devices has serious consequences for schooling and family contact. See ICT prohibition orders and penalties for a child offender.
If death results
Where the offence in subsection (1) results in death, the penalty is imprisonment for life — for a child offender as well as an adult, subject to the Juvenile Justice Act 2014 and section 19 of the Criminal Code — together with an ICT prohibition for the term of imprisonment imposed.
Both section 22(1) and 22(2) are listed in Schedule 2 and may be dealt with summarily by a District Court constituted by a Principal Magistrate — though a Principal Magistrate faced with a serious example of the aggravated offence may decline to do so, given the 25-year maximum.
Sources
- Cybercrime Code Act 2016 — ss 2, 3, 5, 22, 23, 48; Schedule 2
- Juvenile Justice Act 2014; Criminal Code Act (Chapter 262) — ss 18, 19
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.