Using a Carriage Service for Child Pornography Material
What is often still referred to as child pornography, is known at law at child exploitation material. It is an offence to cause child exploitation material to be transmitted to yourself, transmit, make available, publish, distribute, advertise or promote child exploitation material, or solicit it using a carriage service.
Penalties the court can impose
- Imprisonment
- Intensive correction order (previously periodic detention)
- Intensive Correction Orders (ICO)
- Suspended sentence
- Good behaviour order
- Fine order
- Non-conviction order
- Reparation Order
- Non-association order
- Deferred Sentence Order
- Combination Sentence
What is child exploitation material?
Child pornography offences criminalise conduct relating to child exploitation material and pornographic performances involving children.
Specifically, 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.
It is worthwhile noting that 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.
Offences Relating to Using A Carriage Service for Child exploitation material
It is an offence to access child pornography, cause child pornography to be transmitted to yourself, transmit, make available, publish, distribute, advertise or promote child pornography, or solicit child pornography using a carriage service. This refers to use of carriage services by using electronic means such as mobile phones, emails and the internet to commit the offence. Section 474.19 of the Criminal Code Act 1995 states that it is an offence if:-
- The person:-
- Accesses material; or
- Causes material to be transmitted to himself or herself; or
- Transmits, makes available, publishes, distributes, advertises or promotes material; or
- Solicits material; and
- The person does so using a carriage service; and
- The material is child pornography material.
The maximum penalty for this offence is 15 years’ imprisonment.
In order to be guilty of this offence, the person must:-
- Have the requisite intention to do the conduct referred to, meaning that they have to mean to engage in that conduct. This is defined in section 5.2 of the Criminal Code Act 1995.
- The person must also be reckless with respect to the circumstances referred to; that is, that the material is child pornography material. In order to be reckless, they must be aware of a substantial risk that the circumstance exists and, having regard to the circumstances known, it must be unjustifiable to take the risk. This is defined in section 5.4 of the Criminal Code Act 1995.
It is also an offence to possess, produce, supply or obtain child pornography material with the intention that the material be used to commit an offence against section 474.19 of the Criminal Code Act 1995. Section 474.20 of the Criminal Code Act 1995 states that it is an offence if:-
- The person:-
- Has possession or control of material; or
- Produces, supplies or obtains material; and
- The material is child pornography material; and
- The person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:
- By that person; or
- By another person;
in committing an offence against section 474.19 of the Criminal Code Act 1995 (using a carriage service for child pornography material).
The maximum penalty for this offence is 15 years’ imprisonment.
It is possible to be found guilty of this offence even if the offence against section 474.19 (using a carriage service for child pornography material) is impossible. However, attempting to commit an offence under section 474.20 is not an offence; that is, if you attempt to produce child pornography material with the intention to distribute it using a carriage service (in contravention of section 474.19), you are not guilty of an offence under section 474.20 of the Criminal Code Act 1995.
For the purpose of these offences, “child pornography material” is:-
- Material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:-
- Is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
- Is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;
- and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
- Material the dominant characteristic of which is the depiction, for a sexual purpose, of:-
- A sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or
- A representation of such a sexual organ or anal region; or
- The breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;
- in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
- Material that describes a person who is, or is implied to be, under 18 years of age and who:-
- Is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
- Is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;
- and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
- Material that describes:-
- A sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or
- The breasts of a female person who is, or is implied to be, under 18 years of age;
- and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.
However, it is a defence under section 474.21 of the Criminal Code Act 1995 if your conduct is of public benefit and does not extend beyond what is of public benefit. Your conduct will be of public benefit if:-
- Your conduct was necessary for:-
- Enforcing a law; or
- Monitoring compliance with, or investigating a contravention of a law; or
- Administration of justice; or
- Conducting scientific, medical or educational research; or
- At the time of the offence you were a law enforcement officer, intelligence or security office, or an officer or employee of the government of a foreign country performing similar duties to an intelligence or security officer and:-
- You were acting in the course of your duties; and
- Your conduct was reasonable in the circumstances for the purpose of performing that duty; or
- You engaged in the conduct in good faith for the sole purpose of:-
- Assisting the eSafety Commissioner to detect prohibited content or potential prohibited content; or
- Manufacturing, developing or updating content filtering technology in accordance with a recognised or designated alternative access-prevention arrangement.
The defendant bears the evidential burden in relation to the above defences.
What Actions Might Constitute Using A Carriage Service for Child exploitation material?
Examples of what would constitute using a carriage service for child pornography material:-
- You access child pornography by downloading videos from the internet. This is an offence against section 474.19 of the Criminal Code Act 1995.
- You email to your friend a photo of a child watching two adults having sex. This is an offence against section 474.19 of the Criminal Code Act 1995.
- You have child pornography material on your computer with the intention of distributing that material to others over the internet. This is an offence against section 474.20 of the Criminal Code Act 1995.
Examples of what would NOT constitute using a carriage service for child pornography material:-
- You asked your friend to give you a photo of his young cousin in a sexual pose with the intention of distributing it to your mates via a group chat on Facebook Messenger, but were unable to get the photo. In this case, you have only attempted to obtain the material and are therefore not guilty of an offence under section 474.20 of the Criminal Code Act 1995.
What the Police Must Prove
To convict you of an offence under section 474.19 of the Criminal Code Act 1995, the prosecution must prove each of the following matters beyond reasonable doubt:-
- That you:-
- Accessed child pornography material using a carriage service; or
- Caused child pornography material to be transmitted to yourself using a carriage service; or
- Transmitted, made available, published, distributed, advertised or promoted child pornography material using a carriage service; or
- Solicited child pornography material using a carriage service; and
- That you meant to engage in that conduct; and
- That you were aware of a substantial risk that the material was child pornography material and that it was unjustifiable to take that risk; and
- That your conduct was not of public benefit or, if it was, that it extended beyond what was of public benefit.
To convict you of an offence under section 474.20 of the Criminal Code Act 1995, the prosecution must prove each of the following matters beyond reasonable doubt:-
- That you:-
- Had possession or control of child pornography material; or
- Produced, supplied or obtained child pornography material; and
- That you:-
- Had that possession or control; or
- Engaged in that production, supply or obtaining;
- with the intention that the material be used by you or another person in committing an offence against section 474.19 (using a carriage service for child pornography material).
- That your conduct was not of public benefit or, if it was, that it extended beyond what was of public benefit.
Possible Defences for Using A Carriage Service for Child exploitation material
The common ways to defend a charge under section 474.19 of the Criminal Code Act 1995 are:
- To maintain your innocence if you did not commit the offence; or
- To argue that the material was not child exploitation material; or
- To argue that a carriage service was not used to access the material, transmit the material to yourself, or transmit, make available, publish, distribute or advertise to others, or to solicit the material; or
- To argue that you did not mean to engage in the conduct; or
- To argue that you were not aware of a substantial risk that the material was child exploitation material, or that it was justifiable to take that risk; or
- To argue that your conduct was of public benefit and did not extend beyond what was of public benefit.
The common ways to defend a charge under section 474.20 of the Criminal Code Act 1995 are:-
- To maintain your innocence if you did not commit the offence; or
- To argue that the material was not child pornography material; or
- To argue that you did not have possession or control of the child pornography material or that you did not produce, supply or obtain child pornography material; or
- If you did have possession or control of the child pornography material or if you did produce, supply or obtain child pornography material, that you did not do it with the intention that the material be used by you or another person to commit an offence against section 474.19 (using a carriage service for child pornography material); or
- To argue that your conduct was of public benefit and did not extend beyond what was of public benefit.
Which Court Will Hear Your Matter?
These offences are strictly indictable and must be dealt with in the ACT Supreme Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.