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Possession of child abuse material

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In NSW, it is an offence to Produce, Disseminate or Possess Child Abuse Material. This offence carries a maximum penalty of ten years imprisonment.

In NSW, a court can impose any of the following penalties for this charge:


THE OFFENCE OF POSSESS CHILD ABUSE MATERIAL:

The offence of Produce, Disseminate or Possess Child Abuse Material is contained in section 91H(2) of the Crimes Act 1900 (NSW) and states:

  • A person who produces, disseminates or possesses child abuse material is guilty of an offence.
  • Maximum Penalty: Imprisonment for 10 years.

WHAT IS CHILD ABUSE MATERIAL?

Section 91FB of the Crimes Act 1900 (NSW) states:

  • "child abuse material" means material that depicts or describes, in a way that reasonable person would regard as being, in all the circumstances, offensive:
    • a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
    • a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or
    • a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
    • the private parts of a person who is, appears to be or is implied to be, a child.
  • The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include:
    • the standards of morality, decency and propriety generally accepted by reasonable adults, and
    • the literary, artistic or educational merit (if any) of the material, and
    • the journalistic merit (if any) of the material, being the merit of the material 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).
  • Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).
  • The "private parts" of a person are:
    • a person’s genital area or anal area, or
    • the breasts of a female person.

WHAT DOES CHILD ABUSE MATERIAL INCLUDE?

Section 91H(1) of the Crimes Act 1900 (NSW) states:

  • 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.

WHAT DOES DISSEMINATE CHILD ABUSE MATERIAL INCLUDE?

Section 91H(1) of the Crimes Act 1900 (NSW) states:

  • 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.

WHAT DOES POSSESS CHILD ABUSE MATERIAL INCLUDE?

Section 91H(1) of the Crimes Act 1900 (NSW) states:

In relation to the material in the form of data, being in control of data.

WHAT DOES IN CONTROL OF DATA MEAN?

Section 308F(2) of the Crimes Act 1900 (NSW) states:

  • 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 (whether the computer is in this jurisdiction or outside this jurisdiction.

WHAT ACTIONS MIGHT CONSTITUTE THE OFFENCE OF POSSESS CHILD ABUSE MATERIAL?

Examples of Produce Child Abuse Material include:

  • Taking pictures of a naked child under the age of 16;
  • Filming a child in a sexual act.

Examples of Disseminate include:

  • Email a naked picture of a child under 16;
  • Make an agreement with another person to provide pornographic material of children under the age of 16;
  • Post a video of a child committing a sexual act on the internet.

Examples of Possess include:

  • Have a magazine of naked children under the age of 16;
  • On your computer, have a video of a child being tortured.

WHAT THE POLICE MUST PROVE:

To convict you of a Possession of Child Pornography charge, the police must prove the following matter beyond a reasonable doubt:

  • The accused possessed child pornography.

To convict you of Disseminating Child Pornography charge, the police must prove the following matter beyond a reasonable doubt:

  • The accused disseminated child pornography.

To convict you of a Producing Child Pornography charge, the police must prove the following matter beyond a reasonable doubt:

  • The accused produced child pornography.

POSSIBLE DEFENCES FOR PRODUCE, DISSEMINATE OR POSSESS CHILD ABUSE MATERIAL

Possible defences to a Produce, Disseminate or Possess Child Abuse Material charge include, but are not limited to:

  • Duress;
  • Necessity;
  • Attempting to get rid of all child abuse material as soon as you became aware that you possess it;
  • Where you could not have reasonable have known that you produced, possessed or disseminated child abuse material.

WHICH COURT WILL HEAR YOUR MATTER?

This matter is a Table 1 offence which means that either the DPP or an accused can elect to have the matter dealt with in the District Court. If no election is made it will be dealt with in the Local Court.


Types of penalties:

Jail: This is the most serious penalty for possess child pornography and involves full time detention in a correctional facility. Read more.

Home Detention: Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive Corrections Order (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended Sentence: This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community Service Order (CSO): This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good Behaviour Bond: This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Fines: When deciding the amount of a fine for possess child pornography the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10: Avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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