Under Section 91H of the Crimes Act 1900 it is an offence to produce, disseminate or possess child abuse material. The maximum penalty for this offence is imprisonment for 10 years.
Under section 91G it is an offence to use a child for the production of child abuse material. The maximum penalty for this offence is 14 years imprisonment.
What constitutes Possession of Child Abuse Material?
Child Abuse Material
Child abuse material is any material that shows or describes a child in a way that a reasonable person would be regarded as offensive after considering all the circumstances. Material that could be considered offensive consists of:
- A child as a victim of torture, cruelty or physical abuse, or
- A child engaging in a sexual pose or sexual activity (whether or not in the presence of other persons), or
- A child in the presence of another person who is engaging in a sexual pose or sexual activity, or
- The private parts of a child.
When deciding whether a reasonable person would regard the material offensive after considering all the circumstances, the court must take into account;
- Ordinary standards of decency and morality by reasonable adults, and
- Any literary, artistic or educational merit of the material, and
- Any journalistic merit of the material being as a record or report of a matter of public interest, and
- The general character of the material (including whether it is of a medical, legal or scientific character).
Under section 91FA a child is a person under 16 years of age.
Possess
Under section 91H, to “possess” child abuse material includes being in control of material in the form of data.
Under section 308F(2) possession or control of data includes:
- possession of a computer or data storage device holding or containing the data or of a document in which the data is recorded, and
- control of data held in a computer that is in the possession of another person
Disseminate
Under section 91H “Disseminate” child abuse material is said to include:
- send, supply, exhibit, transmit or communicate it to another person, or
- make it available for access by another person, or
- enter into any agreement or arrangement to do so.
Produce
Under section 91H to “produce” child abuse material is to:
- film, photograph, print or otherwise make child abuse material, or
- alter or manipulate any image for the purpose of making child abuse material, or
- enter into any agreement or arrangement to do so.
An example of possessing child abuse material is if you have a naked photo of a child under 16 years of age on your computer.
An example of disseminating child abuse material is if you send a naked photo of a child under 16 years of age to someone else.
An example of producing child abuse material is if you took a naked photo of a child under 16 years of age.
It is still an offence even if the photo is one of yourself.
What the police must prove
Possession
For you to be found guilty of the offence of posses child abuse material the prosecution must prove:
- You have possession of material
- That material is child abuse material.
Disseminate
For you to be found guilty of the offence of disseminate child abuse material, the prosecution must prove:
- You disseminated material
- That material is child abuse material
Produce
For you to be found guilty of the offence of producing child abuse material, the prosecution must prove:
- You produced material
- That material is child abuse material
For you to be found guilty for the offence of “Children not to be used for production of child abuse material” under section 91G (1) the prosecution must prove:
- That you:
- Produced child abuse material, or
- Caused or procured a child to be used, or
- Having care of the child consented to or allowed the child to be used
- And that child is under the age of 14 years.
Possible defences for Possession of Child Abuse Material
It is always a defence where you believe that an essential element of an offence can not be proved by the prosecution some specific defences to this type of offence include:
There are a number of legislated defences to offences related to child abuse material these include:
- The accused person possessed the material when they were under the age of 18, or
- A reasonable person would regard the possession of the material as acceptable after considering the following factors;
- 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,
- the relationship between the accused person and the child depicted in the material.
Further defences to the charge under section 91 H are listed under section 91HA:
91HA(1)
It is a defence to the charge if the accused did not know, and could not reasonably have suspected to have known that he or she produced, disseminated or possessed child abuse material.
91HA(2)
It is a defence to the charge if upon the child abuse material came into the accused’s possession unsolicited and the accused took reasonable steps to get rid of it as soon as they became aware of the material.
91HA(3)
It is a defence to the charge if the conduct of the accused was for public benefit and did not extend beyond what was public benefit.
91HA(8)
It is a defence to the charge if the conduct was in the course of approved research.
If any of these defences are accepted by the court then you should not be found guilty of the charge under section 91H.
Duress
It is a defence to many offences where the offending conduct was done due to Duress. Duress is where an offender is placed in a situation where they have no choice other than to commit an offence due to serious threats to either them or their family.
The defence of duress involves 3 critical elements. A person will not be held criminally responsible for an offence if the offence was committed:
- Because of threats of death or really serious injury to him or herself or to their family, and
- Those threats being of such a nature that a person:
- Of ordinary firmness and strength of will
- Of the same maturity and sex of the accused, and
- In the accused’s position,
- Would have given in to the threats and committed the offence
Element 1:
When looking at the first element, the question is whether a threat was made, and if so, what led the accused to believe the threat would be carried out. These threats may be made expressly or impliedly. It does not matter if there is no real threat to the person or family. What matters is whether the person held a genuine belief that there is an imminent threat of death or serious injury to his or her self or family if he or she did not do what was demanded of them.
Element 2:
The second element is an assessment of the circumstances surrounding the threats. When considering this element the court will have regard to, among others, the nature of the threat, the person making the threat, the accused’s knowledge of the person making the threat and all circumstances which may affect a reasonable person’s reaction to the threats.
Essentially the test for this second element is if you place an ordinary and reasonable person of the same maturity and sex of the accused in the exact same set of circumstances posed to the accused, would that reasonable person succumb to those threats and commit the offence.
Element 3
When assessing the third element, the question is whether there are any other alternatives other than committing the offence. A person will not be able to raise the defence of duress even if they held a reasonable belief that the threats would be carried out if he or she could have avoided the threats by alternative means other than committing the offence.
If the prosecution disproves any of the three elements listed above then that the defence will not be made out. If they are unable to disprove any of the elements then offender should be found not guilty.
Penalties for Possession of Child Abuse Material in NSW
Production, dissemination and possession of child abuse material is considered a serious offence which carries a maximum penalty of 10 years imprisonment. Even for first offenders the court may sentence you to a period of imprisonment. However the court still has the complete range of sentencing options open to them.
The Court may also impose any of the following conditions:
Conditional Release Order
Conditional Release Orders (CRO) are often used to deal with first time offenders and less serious offences where the offender is unlikely to present a risk to the community.
A CRO is an order of the court that you are to be of good behaviour (not commit any other offences) for a specific period of time.
CROs can include conditions such as drug and alcohol abstention, requirements to attend programs, non-association requirements or place restrictions where appropriate. CROs can also have a supervision condition. Courts have discretion to not impose a conviction on a CRO, if they consider it appropriate. CROs can be for a maximum period of 2 years.
The CRO acts as a warning and provides the option to divert less serious offenders out of the criminal justice system, freeing up resources to deal with the offenders who cause the greatest concern to the community. If an offender commits any further offences while on a CRO, subsequent penalties may be more severe.
Community Corrections Order
Community Correction Order’s (CCO) are used to punish offenders for offences that do not warrant imprisonment or an Intensive Corrections Order, but are too serious to be dealt with by a fine or lower level penalty.
CCO’s are a flexible sentence that the court can tailor to reflect the nature of the offender and the offence. The court can select from the range of conditions, such as supervision by Community Corrections Officers, community service work (up to 500 hours) and curfews, to hold offenders to account and reduce their risk of reoffending. CCOs can be imposed for a period of up to three years.
Intensive Corrections Order
An Intensive Corrections Order (ICO) is a custodial sentence that the court decides can be served in the community. Community safety is the court’s paramount consideration when making this decision. ICO’s can be for a maximum of 2 years for single offences and up to 3 years where there are multiple offences.
Supervision is a mandatory condition of an ICO. Further the Courts must impose at least one additional condition. Conditions that can be included in an ICO are: home detention, electronic monitoring, curfews, community service work (up to 750 hours), alcohol/drug bans, place restrictions, or non-association requirements. Offenders may also be required to participate in programs that target the causes of their behaviour.
The ICO is the most serious sentence that an offender can serve in the community. ICOs are not be available for offenders who have been convicted of murder, manslaughter, sexual assault, any sexual offence against a child, offences involving discharge of a firearm, terrorism offences, breaches of serious crime prevention orders, or breaches of public safety orders.
A person convicted of a domestic violence offence can only be sentenced to an ICO if the court is satisfied that the victim or likely co-residents can be adequately protected. For example, a domestic violence offender is not eligible for an ICO with a home detention condition if they are intending to reside with the victim.
Full Time imprisonment
Full Time imprisonment is the most serious penalty a court can impose. The sentence involves a period of time that will be spent inside an NSW correctional centre. When imposing a full time custodial sentence in most circumstances the court will apply a Non-Parole period, this is the minimum time that must be spent in a correctional centre. After the expiration of the Non-Parole period you will be eligible for release with the remainder of the sentence to be spent in the community on parole.
Book a Free Consultation for a Possession of Child Abuse Material charge
Matters involving child abuse material can be complex and very serious. Our lawyers First Offence Legal have extensive experience in dealing with matters involving child abuse materials. We are able to provide you advice as to plea and if necessary help you prepare for sentence.
If you or anyone you know has been charged with an offence involving child abuse material you should contact First Offence Legal and book your free no obligation consultation. Remember you can always make First Offence Legal your first defence.