Possess or Control Child Abuse Material which was Obtained or Accessed Using Carriage Service

It is an offence to possess or control child abuse material which was obtained or accessed using a carriage service. The offence of ‘Possess or control child abuse material obtained or accessed using a carriage service’ is contained in section 474.22A of the Criminal Code Act 1995 (Cth) and carries a maximum penalty of 15 years imprisonment. As this is a Commonwealth offence, it applies in all states and territories.

The Offence of Child Abuse Material Obtained or Accessed Using a Carriage Service

A person can be charged with this offence if they:

• have possession or control of material; and
• the material is data held in a computer or contained in a data storage device; and
• the person used a carriage service to obtain or access the material; and
• the material is child abuse material.

What is the definition of Child Abuse Material?

Child abuse material includes material that describes or depicts a person, or a representation of a person who:

• is, or appears or is implied to be, under 18 years of age; and either:
• is or appears to be subject to torture, cruelty or physical abuse;
• Is or appears to be in a sexual pose or engaging in sexual activity;
• Is in the presence of another person who is in a sexual pose or engaging in a sexual activity; and

The material is in way that a reasonable person would find offensive.

Child abuse material also includes material that describes or depicts, for a sexual purpose either:

• an actual, or a representation of, a sexual organ or the anal region of a person who either is, or appears to be under the age of 18; or
• an actual, or a representation of, the breasts of a female person who is or appears to be under 18 years of age;
• and does so in a way that a reasonable person would consider offensive.

Child abuse material can even include a doll or other object that resembles a person (or body part of a person) under the age of 18 where a reasonable person would consider that the doll or object is used to simulate sexual intercourse.

What is a Carriage Service?

 A carriage service means a service for carrying communications by means of guided and/or unguided electromagnetic energy. This includes landlines, mobile phones and internet services.

How Can a Person Control ar Possess Data?

Possession or controlling material includes having the material stored on a computer or electronic device such as a phone or an iPad. It also includes having control of data in a computer that is possessed by another person that may be inside or outside of Australia.

What Must be Proven?

In order to find a person guilty of the offence, the court must be satisfied:

• that the person had possession or control of material; and
• that the material was in the form of data held in a computer or contained in a data storage device; and
• that the material was child abuse material; and
• that the person engaged in the conduct voluntarily; and
• that the person intended to engage in the conduct of possession and control.

There is a presumption that if the above is proven, the person used a carriage service to obtain or access the material.

Defences

There are a number of defences available for this charge. There is an evidential burden on the accused to raise these defences.

The available defences include:

• that the accused did not do the acts alleged;
• that the material was possessed or controlled for a lawful purpose;
• that the material was possessed or controlled for a public benefit;
• that the accused acted under duress.

What is a Public Benefit?

A purpose is a public benefit if:

• it is necessary for assistance in enforcing laws;
• it is necessary for monitoring compliance with or investigation a contravention of laws; or
• it is necessary for the administration of justice; or
• it is necessary for conducting scientific, medical or educational research that has been approved by the AFP Minister in writing.

Which Court will Hear the Matter?

As this offence carries a maximum penalty of 15 years imprisonment, it cannot be finalised in a summary jurisdiction and must be dealt with on indictment. This means in must be committed to a higher court to be finalised.

Penalties

As this is a Commonwealth offence, if a person has entered a plea of guilty or been found guilty they will be sentenced under Commonwealth sentencing laws. Commonwealth penalties on sentencing include the following:

• dismissal without conviction
• conditional release after conviction
• fines
• recognizance release order
• imprisonment

The defendant can also receive other sentencing options that are available in the applicable State or Territory where the matter is heard.

Implications of a Conviction

Court proceedings can be attended by the public, including media. In some cases, other members of the community can become aware or be informed of the proceedings which can affect your future.

Receiving a conviction for this offence will not result in being placed on the child protection register in New South Wales or the ACT. However, having a criminal conviction can impact you in the future, including restricting your ability to travel and work.

It is important you get specific advice about the implications of a conviction for this offence in your own state and territory.

Please contact one of our criminal law experts on 1300 038 223 or email us for further advice and assistance if you or someone you know has been charged with this offence.