Sentencing for Child Exploitation Material Offences (Qld)
The term child exploitation material (CEM) is broadly used in Queensland in relation to offences involving child pornography. There are two schemes that apply to CEM offences in Queensland, the first is the Criminal Code Act which is state-based legislation and the second is the Commonwealth scheme. The most common child exploitation material offences are possessing child exploitation material (Qld) distributing child exploitation material (Qld) and accessing child pornography (Cth). The primary difference under Commonwealth and Queensland legislation is that in Queensland the child concerned is required to be under 16 and for a Commonwealth offence the child need only be under 18. This article deals with sentencing practices for the different CEM offences and outlines what defences apply to these offences.
Amendment to sentencing legislation
Until late 2020, the sentencing position outlined in section 9 of the Penalties and Sentences Act 1992 was that ‘imprisonment is not the last resort’ for child abuse material offences. This is an exception to the general rule in section 9(2)(a) of the Penalties and Sentences Act 1992, which states that imprisonment is a last resort as a sentence.
However, in 2020 the legislation was amended and now a defendant must serve an actual term of imprisonment unless the court is satisfied that exceptional circumstances exist. Neither state nor Commonwealth legislation provides a statutory definition for what constitutes ‘exceptional circumstances’. It is a matter for the sentencing judge.
What court must consider when sentencing for child exploitation material offences
The PSA goes on to specifically address considerations for offences involving CEM. Section 9(7) relevantly provides that the following must be taken into account:
- The offender’s conduct or behaviour in relation to the material;
- Any relationship between the offender and the child the subject of the material;
- The need to deter similar behaviour by other offenders to protect children; and
- The prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and
- The offenders’ antecedents, age and character; and
- Any remorse or lack of remorse of the offender; and
- Any medical, psychiatric, prison or other relevant report relation to the offender; and
- Anything else about the safety of children under 16 the sentencing court considers relevant.
R v BCX and exceptional circumstances
The 2015 Queensland Court of Appeal decision of R v BCX  QCA 188 provided the court with a guideline as to the process a court may undertake when considering whether exceptional circumstances exist. The case involved the offence of ‘indecent treatment of a child’ rather than a CEM offence; however, it gives guidance on the relevant principles because it too requires a defendant to serve an actual term in prison unless there are exceptional circumstances.
When sentencing a defendant for offences of this nature the sentencing judge is required to give primacy to the considerations set out in sections 9(6) and 9(7) of the PSA. In the decision of BCX it was noted at  that such considerations:
“not only include factors going to an assessment of the objective seriousness of the offence, the effect of the offence on the victim and the need for personal and general protection and deterrence, but also such considerations as the offender’s prospects of rehabilitation, the offender’s antecedents, age and character and whether there is remorse and any medical, psychiatric or other relevant report relating to the offender.”
In BCX, the Court of Appeal noted that in concluding whether exceptional circumstances exist the court should not adopt a “two-stage process” but instead approach such consideration “in light of all the other aspects of the case including those described in [ss 9(5),9(6) and 9(7)], warrant the imposition of a sentence which does not involve actual custody.”
BCX warns a sentencing judge against placing too much weight on comparable cases where such circumstances have been found to exist because to do so “is prone to distract from the requirements of the sentencing task as discussed”. It is noted that rarely are the circumstances in matters such as these sufficiently comparable to provide much assistance.
Defences to CEM offences
There are several legal defences available to a CEM charge.
It is a defence to offences relating to producing child exploitation material if the accused proves that
- They engaged in the conduct for a genuine artistic, legal, scientific, educational, medical or public benefit purpose; and
- The conduct was reasonable in the circumstances for that purpose.
For instance, a legitimate purpose may include a doctor examining a child and taking photographs or written notes as part of the medical records. However, if charged it would be incumbent on the doctor to raise the defence (either on the Crown case or by calling evidence). The Crown would then be required to negative this beyond a reasonable doubt.
It is a defence for an accused charged with producing child exploitation material that they have a cultural exemption. For this defence to succeed, the accused must prove that
- At the time the material was produced, it was subject to a relevant conditional cultural exemption in relation to a showing; and
- The conduct was for the purpose of that showing.
Mistake as to age is not a defence
It is not a defence to any offences involving child exploitation material that the accused did not know the children involved were underage or believed that they were not underage. This is set out in Section 229.
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