Criminal Lawyers for Possess, Produce or Disseminate Child Abuse Material – s 91H Crimes Act 1900

Before you can be found guilty of a ‘child abuse material’ charge, the prosecution has that the material is covered by the legislation.

Child abuse material is defined as any offensive material which depicts or describes either

• A child that is the victim of torture, cruelty or physical abuse, or
• A child engaged in a sexual pose or a sexual activity, or
• A child in the presence of another person that is engaged in a sexual pose or sexual activity, or
• The private parts of a child.

The prosecution must also prove that you produced, disseminated or possessed child abuse material.

• Production refers to the filming, photographing, drawing or otherwise creating child abuse material, as well as entering into agreements to produce child abuse material.
• Dissemination involves distribution, supply, exhibition or transmission of child abuse material, as well as cases where you enter into an agreement or arrangement to supply, distribute, exhibit or transmit child abuse material.
• Possession generally refers to cases where child abuse material was under your custody and control. This often includes cases where child abuse material is found on your computer or in your home.

If you feel that the prosecution will not be able to prove one of the above circumstances, you can enter a plea of ‘not guilty’ and fight the charges in court.

Alternatively, you might have a good reason or excuse to justify your actions – in which case you can enter a plea of ‘not guilty’ and raise a defence in court.

There are several defences that you can use which, if accepted, can result in the charges being dismissed.

• Lack of knowledge
• Approved research
• Where you are a law enforcement officer
• Public Benefit
• Classified Material

The possession, dissemination or production of child abuse material can be dealt with in the Local Court or in a higher court, such as the District or Supreme Courts.

Where your matter is dealt with in the Local Court, the maximum penalty is 2 years imprisonment.

Where your matter is dealt with in a higher court, the maximum penalty is 10 years imprisonment.

However, remember that these are maximum penalties only, and the type of penalty that you will receive will depend on the facts and circumstances of your case. In many cases, you may be able to avoid gaol altogether.

The types of penalties that may apply include:

• Section 10 Dismissal
• Conditional Release Order
• Fine
• Community Correction Order
• Intensive Correction Order
• Prison

Offences relating to child abuse material are often complex and difficult to understand.

We have compiled some information below to help you understand what the charges involve and how they could affect your future.

What is ‘child abuse material?’

As stated above, ‘child abuse material’ refers to any offensive material which depicts or describes either:

• A child that is the victim of torture, cruelty or physical abuse, or
• A child engaged in a sexual pose or a sexual activity, or
• A child in the presence of another person that is engaged in a sexual pose or sexual activity, or
• The private parts of a child

It’s important to remember that under this section a child also refers to persons who ‘appear to be or are implied to be’ children.

This means that in cases where the subject of the material is actually over the age of 18, but they look like a child, or are presented to be a child, the material might still be classified as ‘child abuse material.’

In assessing how serious the offence is (and determining the appropriate penalty for the offence), the court can consider things like:

• Whether children were actually involved in the production of the material (for example, a matter might be held to be less serious where the material was the drawing or painting of a child)
• The age of the children involved, and the type of sexual activity portrayed (the younger the child and the more explicit the material, the more serious the offence)
• The seriousness of the cruelty or physical suffering depicted
• How much you contributed to the material’s creation or existence
• Whether the material was at risk of being seen by ‘vulnerable persons,’ such as children

In determining whether or not something is ‘child abuse material,’ the court will consider generally accepted moral standards, as well as any artistic, educational or journalistic merit of the material.

The court will also consider whether the material has a scientific, medical or legal purpose.

What defences can I use?

There are several defences that you can use which, if accepted, can result in the charges being dismissed:

• Where you didn’t know that you possessed or disseminated the material: For example, where another person downloaded the material onto your computer, or where you accidently download material and then take reasonable steps to get rid of it.
• Where the material was produced for public benefit or law enforcement: For example, where the material was produced for police work, or some scientific, medical or legal purpose.
• Where the material was classified: Where the material was given a M, MA or R rating.
• Approved research: For example, where the material was produced or used solely for the purpose of scientific, medical or educational research that was approved in writing by the Attorney-General.

Lack of knowledge

Often, other people, such as friends, family or work colleagues, may have access to your personal computer. In some cases, these persons may accidentally or intentionally download incriminating data without your knowledge or permission.

Where you have been charged with dissemination or possession of child abuse material and you were unaware that you had the material, you may raise the defence of ‘lack of knowledge’ to prove that you were genuinely unaware of the material. You may also raise this defence where you realise that someone has downloaded child abuse material onto your computer, but you take immediate steps to get rid of it, such as deleting the files.

Approved Research

Sometimes, it is necessary to produce material depicting children for scientific, medical or educative purposes. In these cases, you may be able to raise the defence of ‘approved research,’ even where the material would otherwise be classified as child abuse material.

However, to effectively raise the defence of approved research, you must have obtained written permission from the Attorney-General to conduct the research. You must be able to present evidence of this permission in court should you wish to raise this defence.

Law Enforcement Officers

If you are a police officer, you may be required to examine and evaluate child abuse material to assist in a criminal investigation.

In cases where you are acting exclusively in your duty as a police officer in possessing or disseminating child abuse material, you may raise this defence in court.

However, it must be shown that your conduct was reasonable given the circumstances – for example, it would be unreasonable for you to download the material onto a personal computer for personal viewing purposes, or to disseminate the material to the general public.

Public Benefit

The defence of ‘public benefit’ is similar to that of law enforcement. In some cases, you may argue that the material was possessed or disseminated solely for the ‘benefit of the public.’

The law says that conduct will be for ‘public benefit’ where it was necessary to assist in enforcing the law, or where it was necessary to investigate or monitor a breach of the law, or to assist in the administration of justice. An example is where police ‘bait’ an offender by providing them with child abuse material in order to assist investigations.

Whether or not your actions were for the public benefit will be a matter for the court to decide. Your motives or intentions will not be relevant when assessing whether your actions were for the ‘public benefit.’

Classified material

The law requires all films, books and other explicit material to be classified or rated by government agencies.

In cases where the material in question was, or has subsequently been classified, you will be able to raise a defence to avoid a conviction.

What penalty could I face?

According to official sentencing statistics, the penalties that were imposed in cases of possess, produce or disseminate child abuse material were:

• Local Court: The most common penalty was prison (45% of offenders) followed by a ‘suspended sentence’ (30%). The average prison sentence was a ‘full term’ of 12 months and a ‘non parole period’ of 6 months. A non parole period is the time that must be spent in prison before being eligible for release.
• District Court: The most common penalty was prison (80% of offenders) followed by a suspended sentence (10%). The average prison sentence was a full term of 2.5 years and a non parole period of 12 months.

In determining the appropriate penalty, the court can consider things like:

• The level of planning, sophistication and skill involved in producing or disseminating the child abuse material
• Whether you acted alone or as part of a network in producing or disseminating the material
• The number of persons that you transmitted the material to
• Whether you received any payment or material benefit from disseminating the material
• The amount of child abuse material that you have and the number of children that are depicted
• Whether the material was for your own personal use, or whether you intended to sell or distribute the material
• Whether children were actually involved in the production of the material (for example, a matter might be held to be less serious where the material was the drawing or painting of a child)
• The age of the children involved, and the type of sexual activity portrayed (the younger the child and the more explicit the material, the more serious the offence)
• The seriousness of the cruelty or physical suffering depicted
• How much you contributed to the material’s creation or existence
• Whether the material was at risk of being seen by ‘vulnerable persons,’ such as children

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