Offences of Administering, Encouraging or Helping to Avoid Detection of the Use of a Digital Platform for Child Abuse Material in NSW

On Wednesday, 14 September 2022 a Federal jury in the United States found 55-year old former R & B singer R Kelly – whose full name is Robert Sylvester Kelly – guilty of three counts relating to child abuse images (known as child abuse material in NSW) and three of enticing a minor (known as grooming in NSW), committed in his hometown of Chicago. 

He was originally charged with 13 offences including conspiring to obstruct justice (known as perverting the course of justice in NSW) relating to his 2008 state child abuse images trial, as well as three counts of conspiring to receive child abuse images and two further counts of child abuse images.

His co-accused, two former staff members, were acquitted of all charges. It was alleged that these people encouraged and helped conceal Mr Kelly’s conduct – this type of behaviour is now captured by discrete offences in New South Wales.

Previous convictions

Mr Kelly was convicted in New York earlier this year of sex trafficking offences and sentenced in July to 30 years in prison. 

He now faces additional sentences over his most recent convictions. 

Child abuse images and child enticement 

The offence of producing or sending child abuse images carries a mandatory minimum sentence of 10 years in Chicago, while receipt of such carries a mandatory minimum of five years. 

The charges relate to offences committed against a minor in 2010 and Mr Kelly faces between 10 and 90 years behind bars.

For federal offences, the judge has discretion whether the sentences should be served at the same time as his earlier sentences (concurrently), start from the end of those sentences (cumulatively) or start at some time after the commencement of those sentences but before they end (partially concurrently.

However, he will have to spend at least 85% of his sentence behind bars (known as the minimum term or non-parole period in NSW) and the remainder in the community on ‘license’ (or on parole).

More cases to come

But this is not the end for the former star’s legal troubles, as he is facing further child sex abuse charges in both Illinois and Minnesota.

Legal commentators say the outcome of those cases may not make much difference if the sentences for his most recent convictions run cumulatively, as he will likely to spend the rest of his life behind bars.

Offences relating to the use of digital platforms for child abuse material in NSW

New offences were recently introduced into the Crimes Act 1900 (NSW) specifically aimed at criminalising those who facilitate or encourage the use of digital platforms for child abuse material, previously known as ‘child pornography’ in our state, or who provide information about avoiding detection of such usage.

These offences are:

• Section 91HAA – Administering a digital platform used to deal with child abuse material, 

• Section 91HAB – Encouraging the use of a digital platform to deal with child abuse material, and
• Section 91HAC – Providing information to avoid detection of an offence under section 91HAA or 91HB.

The offence of administering a digital platform used to deal with child abuse material 

Administering a digital platform used to deal with child material is an offence under section 91HAA of the Crimes Act 1900 (NSW) which carries a maximum penalty of 14 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You administered, or assisted in the administration of, a digital platform,
2. The platform was used by another person to deal with child abuse material, and
3. You intended for the platform to be used by another to deal with the material, or

You were aware the platform was being used by another to deal with the material

What is a digital platform?

The term ‘digital platform’ encompasses all forms of online publishing, communication and broadcasting, including:

1. Social media platforms such as Facebook, Twitter, Instagram, LinkedIn and WhatsApp,
2. Media sharing platforms such as YouTube, Spotify and Vimeo,
3. Messaging services linked to social media and media sharing platforms,
4. Online knowledge platforms such as Reddit, Quora and 4chan,
5. Streaming services such as Netflix, Amazon Prime and Stan,
6. Online service platforms such as Uber, Airtasker and Fiverr,
7. E-commerce platforms such as Amazon, eBay and Shopify, and
8. Email communications.

What is to administer?

To administer a digital platform is to 

1. Design, create, manage or maintain the platform, or a part or function thereof,
2. Provide a device to host the platform, or a part or function thereof, or
3. Facilitate the operation and use of the platform, or a part of function thereof

What is to ‘deal with’?

To deal with child abuse material includes to:

1. View, upload or download it,
2. Make it available for viewing, uploading or downloading, or
3. Facilitate the viewing, uploading or downloading of it

What is child abuse material?

‘Child abuse material’ is material that depicts or describes in a way that reasonable persons would regard as being offensive:

1. The private parts of a person who is, or appears to be or is implied to be, a child, or
2. A person who is, or appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or engaged in or apparently engaged in a sexual pose or sexual activity, or in the presence of another who is engaged in or apparently engaged in a sexual pose or sexual activity.

What is material?

Material includes any film, printed matter, data or any other thing of any kind, including any computer image or other depiction.

What is data?

Data includes information in any form, as well as any program or part thereof.

What are private parts?

‘Private parts’ is defined as the genital or anal area, whether bare or covered by underwear, or the breasts of a female, or transgender or intersex person identifying as female whether or not the breasts are developed

How is offensiveness determined?

In determining whether material is offensive to a reasonable person, the following matters must be taken into account:

• the standards of morality, decency and propriety accepted by reasonable adults,
• the literary, artistic or educational merit (if any) of the material,
• the journalistic merit (if any) of the material, and/or
• the general character of the material.

Who is a child?

For the purposes of the offence, a ‘child’ is a person under the age of 16 years

What are the defences to the charge?

Statutory defences to a charge under section 91HAA include where you are able to establish, on the balance of probabilities, that:

1. Your conduct was for public benefit and did not extend beyond it,
2. The material received a classification for publication,
3. The use of the material was approved by the Attorney-General for research, and
4. The material depicts you and would not be child abuse material in the absence of your image.

When is conduct for public benefit?

Conduct is for public benefit if, and only if, it is necessary for or of assistance in:

1. Enforcing or administering a law of the Commonwealth or an Australian state or territory,
2. Monitoring compliance with, or investigating a contravention of, such a law
3. The administration of justice.

The question of whether your conduct was for public benefit is one of fact and your motives are irrelevant.

An additional statutory defence is where are able to establish that you took all reasonable steps in the circumstances to prevent other persons from using the platform to deal with child abuse material on becoming aware the platform was being used for that purpose.

General legal defences also apply to the charge, including the defences of duress and necessity.

Where you are able to raise evidence of a general legal defence, the prosecution must disprove that defence beyond reasonable doubt.

You are entitled to an acquittal (ie a not guilty verdict) if the prosecution is unable to do so.

The offence of encouraging the use of a digital platform to deal with child abuse material 

Encouraging the use of a digital platform to deal with child abuse material is an offence under section 91HAB of the Crimes Act 1900 (NSW) which carries a maximum penalty of 14 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You were at least 18 years of age,
2. You encouraged another person to use a digital platform, and
3. You intended for the other person to use the platform to deal with child abuse material.

In determining whether you so encouraged the other person, it is not necessary for the prosecution to prove:

1. The identity of the person you encouraged,
2. That the other person actually used the platform in the prescribed manner, or
3. That in the event the other person used the platform in that manner, it was your encouragement that led him or her to do so.

The enumerated statutory defences which apply to section 91HAA also apply to this charge, as do the general legal defences.

Providing information to help avoid detection of an offence involving the use of a digital platform for child abuse material 

Providing information about avoiding detection of an offence involving the use of a digital platform to deal with child abuse material is an offence under section 91HAC of the Crimes Act 1900 (NSW) which carries a maximum penalty of 14 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You provided information to another person,
2. The information was about how to avoid detection of, or prosecution for, the commission of an offence under section 91HAA or 91HAB, and
3. Your conduct was intentional.

In determining whether you committed an offence under the section, it is not necessary for the prosecution to prove:

1. The identity of the person to whom you provided the information, or
2. That the other person actually used the information.

The enumerated statutory defences which apply to section 91HAA also apply to this charge, as do the general legal defences.

The offence of producing, possessing or disseminating child abuse material 

Producing, possessing or disseminating child abuse material is an offence under section 91H of the Crimes Act 1900 which carries a maximum penalty of 10 years in prison

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You produced, possessed or disseminated material, and
2. The material was child abuse material.

‘Production’ includes:

1. Filming, photographing, printing or otherwise making,
2. Altering or manipulating, and
3. Entering an agreement or arrangement to do so.

‘Possession’ includes physical custody or control of material or data.

‘Dissemination’ includes:

1. sending, supplying, exhibiting, transmitting or communicating to another,
2. making available for access by another, and
3. entering an agreement or arrangement to do so.

What are the defences to the charge?

Specific statutory defences to the charge include where you are able to establish, on the balance of probabilities, that:

1. You did not know, and could not reasonably have known, that you possessed, disseminated or produced it,
2. Your conduct was for the public benefit (see the definition of public benefit above),
3. The material received a classification for publication,
4. The use of the material was approved by the Attorney-General for research, and
5. The material depicts you and would not be child abuse material in the absence of your image.

An additional statutory defence is where you are able to establish that you received the material unsolicited and took reasonable steps to get rid of it upon becoming aware of its nature.

General legal defences also apply, including the defences of duress and necessity.

What is the exception to the charge?

An exception to the offence is where:

1. The possession of the material occurred when you were under 18, and
2. A reasonable person would consider the possession acceptable considering:

• The nature and content of the material,
• The circumstances whereby you came to possess it,
• The age, vulnerability and circumstances of the child depicted,
• Your age, vulnerability and circumstances, and
• The relationship between you and the child depicted.

The offence of grooming a child for unlawful sexual activity

Grooming a child for unlawful sexual activity is an offence under Section 66EB(3) of the Crimes Act 1900 which carries a maximum penalty of 10 years in prison or 12 years if the child was under 14 years of age.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You were at least 18 years of age,
2. You groomed a child for unlawful sexual activity, and
3. You did so intentionally.

What does ‘groomed’ mean?

‘Groomed’ means to expose a child to indecent material, or provide a child with an intoxicating substance, or with any financial or material benefit intending to make it easier to procure the child for unlawful sexual activity.

What does ‘procure’ mean?

‘Procure’ means to encourage, entice, recruit or induce, whether by threats, promises or otherwise.

Who is a child?

Again, for the purposes of the offence, a ‘child’ is a person under the age of 16 years.

What is unlawful sexual activity?

‘Unlawful sexual activity’ covers a broad range of conduct, including:

1. Sexual act,
2. Sexual touching,
3. Sexual intercourse,
4. Producing, possessing or disseminating child abuse material,
5. Forced self-manipulation, and
6. Child prostitution.

The prosecution does not need to specify the type of activity you groomed the child for the offence extends to procuring adults who pretend to be children, provided the prosecution proves you believed the adult was a child.

What are the defences?

A statutory defence to the charge is that you reasonably believed the other person was not a child.

Duress and necessity are also legal defences to this charge.

Going to court for a sexual offence?

If you have been accused of a sexual offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free consultation with a defence lawyer who is vastly experienced and has an exceptional track record of achieving justice for clients.

Conferences can take place at one of our nine offices across New South Wales, at correctional centres or via audio-visual link for those who are held in custody, or via telephone or Zoom meeting.