This article was written by Natasha Shorter - Senior Associate - Brisbane
Natasha Shorter completed a double degree in Law and Criminology and Criminal Justice at Griffith University graduating with Honours. She was admitted to practice in the Queensland Supreme Court in September 2008. Natasha is a Senior Associate practicing in criminal law. She has a real passion for social justice and protecting people’s rights, a quality that makes her a proficient...
Child Exploitation Material (Qld)
Child exploitation material (child pornography) is illegal in Queensland and there are various criminal offences relating to possessing, producing or distributing it. The Penalties and Sentences Act 1992 was recently amended so that courts are now obliged to impose a sentence of imprisonment for child exploitation material offences unless there are exceptional circumstances.
What is child exploitation material?
Child exploitation material is material that, in a way that is likely to cause offence to a reasonable adult, describes or depicts a person, or is a representation of a person, who is, or appears to be under 16 years old:
- in a sexual context – for example, engaging in sexual activity; or
- in an offensive or demeaning context; or
- being subjected to abuse, cruelty or torture.
For the police to prove the offence of possessing child exploitation material was committed, they must prove each element of the charge beyond a reasonable doubt. Specifically, they must prove:
1. The defendant possessed child exploitation material. Possession involves custody or control of the thing and /or the right to obtain custody or control of the thing.
2. The defendant knowingly had the material in their possession.
“Material” includes videos, photographs, drawings, words, stories, and cartoons.
Penalty for child exploitation material
The maximum penalty for possessing child exploitation material is 14 years imprisonment.
On 14 September 2020, the Penalties and Sentences Act was amended to state that when a court sentences a defendant for possessing child exploitation material, “a sentence of actual imprisonment must be imposed unless there are exceptional circumstances”.
Child exploitation material: What are exceptional circumstances?
Unfortunately, there is no definition of what the term “exceptional circumstances” means. Each case will therefore be determined on its own merits and will be subject to interpretation and judgement by the presiding judicial officer.
The court has previously accepted that if the offending is of a very low level, a finding of exceptional circumstances may be made. Generally, all of the circumstances of a particular case will need to be explored in order to determine whether the offender should avoid an actual custodial sentence ofr a child exploitation material offence.
The Court of Appeal has noted that
“When undertaking such an assessment, it should not be thought that a combination of circumstances, none of which is individually exceptional, can never be regarded as exceptional, because it may be that it is only in combination that particular circumstances take on an exceptional quality.”
The court also said that it would always be a discretionary matter for each Judge.
Factors the court must consider
In imposing an appropriate sentence and determining whether there are exceptional circumstances in a child exploitation material matter, the court must have regard to a number of factors set out in the legislation including:
- The nature of the material, including the apparent age of the child involved and any activity shown;
- The need to deter similar behaviour by other offenders in order to protect children;
- The accused’s prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause them to behave in a way acceptable to the community;
- The offender’s antecedents, age and character;
- Any remorse or lack of remorse;
- Any medical, psychiatric, prison or other relevant report relating to the offender;
- Anything else relating to the safety of children under 16 that the sentencing court considers relevant.
In determining the appropriate sentence for a child exploitation material offence, the court will consider the total number of images and videos and the classification or category of each image or video.
The Oliver Scale
For years, the police have used the “Oliver scale” to categorise chil exploitation material. The police would review the material and provide a report outlining the number of images that make each of the relevant categories.
Categories from 1-6 are used (with 1 being the least serious and 5 being the worst)
The Oliver scale categories are as follows:
Category description
- No sexual activity
- sexual acts between children
- adult/child not penetrative
- adult/child penetrative
- bestiality / sadism
- animated / cartoons
Interpol Baseline Scale
More recently the police have adopted a new classification process known as Interpol Baseline Scale (IBS). This report includes 2 categories. Category 1 (real child under 13 with focus on genitals) and Category 2 (under 16, sexual activity, including written or animated child exploitation material).
Child Protection Offender Register
If a person is found guilty of any child exploitation material offence, they can be required to be subject to the Child Protection Offender Register. This national scheme requires persons who have been convicted of particular offending against children to keep police informed of their personal details for a period of time after the offending whilst they are in the community.
A reportable offender must report his or her personal details to police quarterly in the months of February, May, August and November. A reportable offender must report to police any change to his or her personal details within a certain period after the change occurs. Depending on the change, the report needs to be made either 24 hours or 7 days after the change occurs.
The duration of the reporting is generally between 5 and 10 years and will be determined based on the number and type of reportable offences for which the person was found guilty.
Failure to comply with the above reporting obligations or knowingly providing false or misleading information is punishable by a fine of up to 300 penalty units or 5 years imprisonment.
All information contained in the register will be treated in a strictly confidential manner and will only be used for very strict purposes. The details will not be made available to the public.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.