Possession of Child Abuse Material

In New South Wales, it is an offence to Produce, Disseminate or Possess Child Abuse Material. The maximum penalty for this charge in NSW is 10 years imprisonment. 

What is Possession of Child Abuse Material?

The legislation describes the offence of ‘Production, Dissemination or Possession of Child Abuse Material’ under Section 91H of the Crimes Act 1900 (NSW) which states:

‘Disseminating’ child abuse material includes:

1. Send, supply, exhibited, transmit or communicate it to another person, or
2. Make it available to access by another person, or
3. Enter into any agreement or arrangement to do so.

‘Possess’ child abuse material includes, in relation to the material in form of data, being in possession or control of data.

‘Produce’ child abuse material includes:

1. Film, photograph, print or otherwise make child abuse material, or
2. Alter or manipulate any image for the purpose of making child abuse material, or
3. Enter into any agreement or arrangement to do so.

Section 91FB of the Crimes Act 1900 states:

1 – ‘Child Abuse Material means material that depicts or describes, in a way that a reasonable person who regard as being, in all circumstances, offensive:

1. a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
2. 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
3. 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
4. the private parts of a person who is, appears to be or is implied to be, a child.

2 – The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include:

1. The standards of morality, decency and propriety generally accepted by reasonable adults, and
2. The literacy, artistic or educational merit (if any) of the material, and
3. The journalistic merit (if any) of the material, (including whether it is of a medical, legal or scientific character).
4. The general character of the material (including whether it is of a medical, legal or scientific character).

3 – 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)).

4 – The ‘private parts’ of a person are:

1. 1. A person’s genital or anal area, whether bare or covered by underwear, or 
   2. The breasts of a female person, or transgender or intersex person identifying as fame, whether or not the breasts are sexually developed.

The following acts might constitute Possession of Child Abuse Material:

• Having sexually explicit photos of a 10-year-old on your computer
• Asking AI to generate sexual content depicting a 14-year-old
• Having videos of a child posing in a sexual nature on your phone
• Posting a video of a child committing a sexual act on the internet

What Must Be Proven?

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

• That you possessed material
• That the material was child abuse material
• That you knowingly possessed child abuse 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 a Table 1 offence, which means that it will be dealt with in the Local Court unless the Prosecution or accused elects to have the matter dealt with in the District Court.  

Possible Defences to Possession of Child Abuse Material

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

• That you could not have reasonably have known that you had produced, possessed or disseminated child abuse material (Section 91HA(1) of the Crimes Act 1900);
• Unsolicited receipt and disposal (Section 91HA(2) of the Crimes Act 1900).

Common Questions about Possession of Child Abuse Material

Will I receive a criminal conviction?

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

In NSW, a Court can impose any of the following penalties for a Possession of Child Abuse Material charge:

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10

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 this offence might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover, a conviction for an offence of this nature can completely rule out certain career paths such as teaching and a range of government employment options. Child sex offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol for a Possession of Child Abuse Material charge?

There is a very high risk of a gaol sentence for these offences, the majority of people charged with these offences end up with a full-time gaol sentence. It is incredibly important that you get expert advice to assist you if you are facing these kinds of charges. There is a possibility, depending on the circumstances, that a different sentence could be imposed, but it is important you get help.

What should I do if I receive unsolicited child abuse material?

If you receive unsolicited child abuse material, please contact Armstrong Legal immediately. 

What are the long-term consequences of being found guilty of this offence?

• You may be placed on the Child Protection Register for a period of 10-15 years or for life depending on the severity of the offence/if you are a repeat offender. 
• An automatic and permanent bar will be placed on your Working with Child Check/your ability to obtain a Working with Children Check.
• Travel restrictions may be placed on you as you will have to report any international travel plans to the Police, and you may be denied access to various countries.

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