Child Abuse Material Offence

Possession of child pornography or child abuse material is a serious offence in NSW punishable by imprisonment on indictment for up to 10 years. Courts have routinely held that offences involving offences dealing with the production, dissemination and possession of child pornography and child abuse material warrant condign punishment, with the imposition of sentences of full-time imprisonment being prevalent in respect of offences of this kind. This article explores the offence of possessing child abuse material in NSW and the potential defences.

What is the offence of possess child abuse material?

Section 91H(2) of the Crimes Act 1900 (NSW) states that a person shall not produce, disseminate or possess child abuse material.

Dissemination of child abuse material includes:

1. Sending, supplying, exhibiting, transmitting or communicating it to another person,
2. Making it available for access by another person, or
3. Entering into any agreement or arrangement to do so.

Production of child abuse material includes:

1. Filming, photographing, printing or otherwise making child abuse material,
2. Altering or manipulating any image for the purpose of making child abuse material, or
3. Entering into any agreement or arrangement to do so.

Possession of child abuse material includes being in possession or control of data, including possession of computer or data storage devices.

What sentences are imposed for child pornography and child abuse material offences?

Offences involving child pornography and child abuse material are very serious. The possession of child pornography material creates a market for the continued corruption and exploitation of children. As a result, courts have routinely held that offences of this nature warrant strong elements of deterrence as well as condign punishment.

Although each case is different, the risk of a full-time sentence of imprisonment is usually quite high. In NSW, an Intensive Corrections Order as an alternative prison sentence to full time imprisonment is not available as a sentencing option for child abuse material offences.

Each case is carefully considered on sentence however should the court form the view that a sentence of imprisonment is warranted, the only option available to the court on sentence is that of a full-time prison sentence.

In determining the seriousness of offences involving child pornography and child abuse material, some of the factors which are relevant are:

1. Whether actual children were used in the creation of the material.
2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
3. The extent of any cruelty or physical harm occasioned to the children what may be discernible from the material.
4. The number of images or items of material and the number of different children depicted.
5. In cases of possession of such material, the offender’s purpose for having this material.
6. In cases of dissemination, the number of persons to whom the material was sent.
7. Whether any payment or benefit was made, provided or received for the acquisition or dissemination of the material.
8. The proximity of the offender’s activities to those responsible for bringing the material into existence.
9. The degree of planning, organisation or sophistication used by the offender in acquiring, storing, disseminating or transmitting the material.
10. Whether the offender acted alone or in a network of other like-minded persons.
11. Any risk of the material being seen or acquired by vulnerable persons (particularly children) or by persons susceptible to act in the manner described or depicted in the material.
12. Any other factor relevant to the assessment of the objective seriousness of the offence.

Although the risk of imprisonment for offences of child pornography and child abuse material is high, that is not to say that every case which comes before a court will automatically result in a sentence of full-time imprisonment. The objective seriousness of each case as well as the personal characteristics of an offender need to be closely examined before determining the appropriate sentence in each case.

What are the defences available for child abuse material offences?

The law provides defences and exceptions to offences of child abuse material. Under section 91HB of the Crimes Act 1900 (NSW) a person does not commit an offence of possessing child abuse material if:

1. The possession of the material occurred when the accused person was under the age of 18 years, and

• A reasonable person would consider the possession of the material by the accused person as acceptable having regard to:

• The nature and content of the material,
• The circumstances in which the material was produced and came into the possession of the accused person,
• The age, intellectual capacity, vulnerability or other relevant circumstances of the child depicted in the material,
• The age, intellectual capacity, vulnerability or other relevant circumstances of the accused person at the time the accused person first came into possession of the material and at the time that the accused person’s possession of the material first came to the attention of a police officer, and
• The relationship between the accused person and the child depicted in the material.

Section 91HA of the Crimes Act 1900 (NSW) contains a number of defences to offences of child abuse material. Some of the main defences are:

1. It is a defence if an accused can establish that the accused did not know and could not reasonably be expected to have known that he or she produced, disseminated or possessed child abuse material.

• In the case of possession of child abuse material, it is a defence if an accused can establish that the material concerned came into their possession unsolicited and the accused took reasonable steps to get rid of the material as soon as he or she became aware of it.

Other defences may be available depending on the offence charged and the circumstances of the alleged offending.

Practical considerations

The implications of being convicted of an offence involving child abuse material are very serious. Apart from the risk of a full-time sentence of imprisonment, a conviction for an offence involving child abuse material will inevitably result in an offender being placed on a Child Protection Register, requiring an offender to register a wide variety of information to police and being subject to stringent requirements pursuant to their registration. Any breach of an offender’s obligations pursuant to a Child Protection Register is a serious criminal offence.

Cases involving child pornography and child abuse material can be complex and there may be defences available to an accused, depending on the circumstances. It is vital that anyone who is suspected of being involved in or has been charged with offences involving child pornography or child abuse material consult with an experienced criminal defence lawyer as soon as possible.

Why Choose Australian Lawyers and Advocates?

If you are facing an investigation or charges involving allegations of child pornography or child abuse material, our team of expert defence criminal and traffic lawyers in Sydney can help. We will carefully consider your case and provide expert advice on your options.

Our team of expert criminal and traffic defence lawyers in Sydney have a proven track record of securing successful outcomes for our clients in criminal law matters. Our results speak for themselves.

If you require expert representation in a criminal or traffic law matter, don’t delay. Contact our expert criminal defence lawyers in Sydney today.

The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you, or someone you know has been charged with a criminal offence and requires legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss any criminal law or traffic law matters further.