Possession of Child Exploitation Material

In the ACT it is a criminal offence to possess child exploitation material. This offence carries a maximum penalty of a $112,000 fine or 7 years’ imprisonment, or both. If the offence involves family violence, it is aggravated and the maximum penalty is increased to a $144,000 fine or 9 years’ imprisonment, or both. 

There are a number of ACT offences relating to having possession, or control of, child exploitation material, trading in child exploitation material (including producing, publishing, offering or selling child exploitation material), and using, offering or procuring a child either for a pornographic performance or to produce child exploitation material. 

What Is Possessing Child Exploitation Material?

The offence of possessing child exploitation material is contained in section 65 of the Crimes Act 1900 and states that it is an offence if:

• The person intentionally possesses pornography; and
• The pornography is child exploitation material.

For this offence, “child exploitation material” is anything that represents:

• The sexual parts of a child; or
• A child engaged in an activity of a sexual nature; or
• Someone else engaged in an activity of a sexual nature in the presence of a child;

substantially for the sexual arousal or sexual gratification of someone other than the child. This definition is contained in section 64(5) of the Crimes Act 1900.

The word “represent” is defined in section 64(5) of the Crimes Act 1900 as “depict or otherwise represent on or in a film, photograph, drawing, audiotape, videotape, computer game, the internet or anything else.” This extends what is considered child pornography well beyond photographs and videos.

The following acts constitute Possession of Child Exploitation Material:

• You download from the internet a photograph of an unknown 10 year old boy lying naked on his back on his bed, where his genitals are visible.
• You own a pornographic videotape depicting two adults having consensual sex while an 8-year-old girl looks on.
• You have a drawing of two children performing oral sex on one another.
• You own a computer game which, at one stage, shows graphics of a woman doing a striptease for a 12-year-old boy.
• You are 15 years old and there is a girl you like at your high school who is the same age as you. She sends you a photo of her naked breasts.

What Must Be Proven?

For a person to be found guilty of Possession of Child Exploitation Material the Prosecution must prove each of the following matters beyond a reasonable doubt: 

• You possessed pornography; and 
• The possession was intentional; and
• The pornography possessed was child exploitation material.

If the Prosecution does not prove every single one of the above elements, you will be found not guilty.

Which Court Will Hear The Matter?

This offence is an Indictable offence, which means that it can either be heard in the Magistrates Court or the Supreme Court. If you consent to the jurisdiction of the Magistrates Court, the maximum penalty that can be imposed is a $5,000 fine and/or two years imprisonment. However, if the matter is heard in the Supreme Court the maximum penalty can be imposed.

Possible Defences

The following defences may be available for a Possession of Child Exploitation Material charge: 

• To maintain your innocence if you did not commit the offence; or
• The pornography was not child exploitation material, for example that it was not substantially for the sexual arousal or sexual gratification of someone other than the child; or
• You did not intentionally possess child pornography.
• You had no reasonable grounds to suspect that the pornography concerned was child pornography (this defence is contained in section 65(3) of the Crimes Act 1900). 

Common Questions

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely.

In the ACT, a Court can impose any of the following penalties:

• Full-time imprisonment
• Intensive Corrections Order (ICO)
• Suspended Sentence 
• Fine
• Good Behaviour Order 
• Non-conviction 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for incest might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover, a conviction for an offence of a sexual nature can completely rule out certain career paths such as teaching and a range of government employment options. Sexual offences also often result in sentences that include imprisonment even where a person has no previous convictions. 

Will I go to Gaol?

The offence carries a maximum penalty of full-time imprisonment. It is very likely that you will be sentenced to a term of imprisonment if you are found guilty of, or plead guilty to, this offence, even if you do not have any prior criminal convictions. 

What is child exploitation material?

Child exploitation material offences criminalise conduct relating to child exploitation material and pornographic performances involving children.

Section 64(5) of the Crimes Act 1900 defines “child exploitation material” as anything that represents either:

• The sexual parts of a child; or
• A child engaged in an activity of a sexual nature; or
• Someone else engaged in an activity of a sexual nature in the presence of a child;

substantially for the sexual arousal or sexual gratification of someone other than the child.

The word “represent” is defined in section 64(5) of the Crimes Act 1900 as “depict or otherwise represent on or in a film, photograph, drawing, audiotape, videotape, computer game, the internet or anything else.” This extends what is considered child pornography well beyond just photographs and videos.

Section 64(5) of the Crimes Act 1900 further defines “pornographic performance” as:

• A performance by a child engaged in an activity of a sexual nature; or
• A performance by someone else engaged in an activity of a sexual nature in the presence of a child;

substantially for the sexual arousal or sexual gratification of someone other than the child.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.