Sections 23(2) and (3) of the Cybercrime Code Act 2016 escalate cyber harassment by consequence.
Section 23(2) — psychological harm or physical injury
Where the offence under subsection (1) results in psychological harm or physical injury, 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 plus two years; or both;
(b) adult offender — imprisonment up to 10 years; or an ICT prohibition for the term plus two years; or both.
Section 22(2) speaks of “psychological or physical harm”. Section 23(2) speaks of “psychological harm or physical injury”.
The difference in the second limb — injury rather than harm — may be no more than drafting variation. Both provisions put psychological consequences first, recognising that the characteristic damage of online abuse is to mental health.
Section 23(3) — death
Where the offence under subsection (2) results in death, the offender is guilty of a crime.
Penalty:
(a) child offender, subject to the Juvenile Justice Act 2014 and section 19 of the Criminal Code Act (Chapter 262) — (i) imprisonment for life; and (ii) prohibition from accessing and using ICTs or electronic systems or devices for the term of detention imposed;
(b) adult offender, subject to section 19 of the Criminal Code — (i) imprisonment for life; and (ii) prohibition from accessing and using ICTs or electronic devices for the term of imprisonment imposed.
Section 23(3) refers to the offence under subsection (2) resulting in death — whereas section 22(3) refers to the offence in subsection (1).
Read literally, section 23(3) would require the aggravated offence in subsection (2) — harassment that resulted in psychological harm or physical injury — to have gone on to result in death. In practice a death arising from sustained harassment will almost always have been preceded by psychological harm, so the distinction may make little difference.
Note too that in paragraph (a) the ICT prohibition runs for the term of detention imposed, although the sentence provided is imprisonment for life. The same paragraph in section 22(3) refers to the term of imprisonment.
Compared with the bullying equivalents
| Consequence | s 22 — child victim | s 23 — any victim |
|---|---|---|
| None | Adult 7 years; child detention 3 years | Adult 7 years; child detention 3 years |
| Harm | Adult 25 years; child detention 5 years | Adult 10 years; child detention 5 years |
| Death | Life imprisonment for adult and child, plus ICT prohibition | |
Where harm results, an adult who bullied a child faces 25 years; an adult who harassed another adult faces 10.
That is the Act’s judgment about the vulnerability of children. At the two extremes — no harm, and death — the penalties are identical.
For a child offender, the penalties under sections 22 and 23 are identical at every level.
Proving the consequence
Neither subsection requires the offender to have intended harm or death. The mental element comes from subsection (1) — acting intentionally or recklessly for one of the six purposes: coercing, intimidating, threatening, harassing, stalking, or causing emotional distress.
What must be proved is that the offence resulted in the consequence. In an online harassment case that means establishing:
- The content and timeline of the communications;
- The victim’s response over that period;
- Medical, psychological or other evidence of harm; and
- That the harassment, rather than something else, produced it.
The evidence is almost entirely electronic, which makes the Part IV powers central: preservation notices under section 36 to stop material being deleted, production orders under section 35 for subscriber information, restraining orders under section 38, and search warrants under section 32.
Where many took part
Section 23(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.
Sections 23(2) and (3) then attach to the offence under subsection (1) where consequences follow. On their terms, every person who committed the subsection (1) offence is exposed.
Individual culpability is a matter for sentence, applying section 3(1)(c), which imports the Criminal Code provisions on punishment including sections 18 and 19. But the exposure is real for anyone who joins a campaign against an individual.
Sections 23(1) and (2) are listed in Schedule 2 and may be dealt with summarily. Section 23(3) is not. See also section 23(4), a separate offence carrying up to 10 years for an adult.
Sources
- Cybercrime Code Act 2016 — ss 2, 3, 5, 22, 23, 32, 35, 36, 38, 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.