Under Section 192P of the Crimes Act 1900 (NSW), it is an offence to possess a Dedicated Encrypted Criminal Communication Device (DECCD) for certain purposes.

Elements

To establish the offence, it must be shown that the person:

• possesses a dedicated encrypted criminal communication device, and
• there are reasonable grounds to suspect the possession of the dedicated encrypted criminal communication device was to commit or facilitate serious criminal activity

Reasonable Grounds

Matters that may be considered in determining whether there are reasonable grounds to suspect the possession of the dedicated encrypted criminal communication device to commit or facilitate a serious criminal activity include the following:

• a service attached to the dedicated encrypted criminal communication device is in a false name
• the dedicated encrypted criminal communication device was purchased or obtained from
  • a criminal network, or
  • a person who is reasonably suspected of supplying dedicated encrypted criminal communication devices to persons involved in criminal activity
• a person is in possession of indications of drug supply
• contemporaneous possession of prohibited firearms
• contemporaneous possession of child abuse material

Dedicated Encrypted Criminal Communication Devices (DECCD)

A DECCD means a mobile electronic device that:

• is specifically designed or equipped for use to facilitate communication, between persons reasonably suspected of being involved in serious criminal activity, to defeat law enforcement detection, and
• uses hardware modifications or software deployed on the device that:
  • modifies the device’s factory operating system, whether temporarily or permanently to block or replace key features usually available on the device’s operating system, including, for example, voice call, web browsers or geolocation services, and
  • enables encryption of communication between users, and
• is configured in a way that specifically impedes law enforcement access to information on the device

Penalties

The maximum penalty of the offence is three years imprisonment.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

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