Possessing, Controlling, Producing, Supplying Or Obtaining Child Pornography Material For Use Through A Carriage Service
The maximum penalty for the charge of possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service (Section 471.20 of the Criminal Code Act) is 15 years imprisonment.
In NSW, a court can impose any of the following penalties for this charge:
- Prison Sentence
- Home Detention
- Intensive Corrections Order (ICO)
- Suspended Sentence
- Community Service Order (CSO)
- Community Corrections Orders (CCO)
- Good Behaviour Bond
- Section 10A
- Conditional Release Order (CRO)
- Section 10
In laymen’s terms, this offence covers conduct in preparation for suppling child pornography over a carriage service (usually the internet). For example, someone who purchased a hard drive that contained child pornography so that they could set up a website would be guilty of this charge.
The determination as to the serious of the offence will depend on a multitude of factors, including:
- Whether the allegation is that you produced, disseminated or simply possessed
- The number of images or videos
- The intensity of the material
Based on our experience and statistics from the Judicial Commission of New South Wales the penalty in a case that is within the mid range of seriousness for the offence of possession of child abuse material is likely to be some form of custody, whether it be full time imprisonment or various alternatives to that.
What Actions Might Constitute this Charge?
- Disseminating is transmitting or otherwise supplying the material to other persons, such as by email.
- Production is defined as creation of the material, whether it be physically or by digital manipulation
- Possession includes “being in possession or control of data”. For example, this would include (knowingly) possessing a computer with the material on the hard drive.
- Child abuse material is material that “depicts or describes”, in an offensive way:
- the private parts of a child, or
- a child engaged in sexual activity or being tortured
What the Police Must Prove?
The police need to prove that you:
- Produced or
- disseminated or
- child abuse material
Possible Defences for this Charge:
It is a defence to this charge if you “did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material”. An example of this might be if you buy a 2nd hand computer from a stranger not realising or suspecting that there was this material present on the hard drives
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:
Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). 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: As a result of amended legislation this penalty was repealed on 24 September 2018. 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): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). 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: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). 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.
Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.
Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. 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.