Child Abuse Material Offences (Vic)
In Victoria, a person can be found guilty of possession of child abuse material under either Victorian legislation or under Commonwealth legislation. Possession can consist of physical possession of photos or discs or it can consist of using the internet to access an online storage location where the material has been saved and is being controlled by the offender. This article outlines the state and federal child abuse material offences that a person in Victoria can be charged with.
Offences relating to child abuse material are very serious and commonly attract an immediate term of imprisonment. However, non-custodial sentences are sometimes imposed where there are significant subjective circumstances that demonstrate that the offender should not be imprisoned.
What is child abuse material?
In Victoria, the Crimes Act 1958 the phrase ‘child abuse material’ refers to what was formerly known as child pornography. The new terminology has broadened the scope of what material is covered.
Section 51A of the Crimes Act 1958 defines ‘child abuse material’ as material that depicts or describes a person who is, appears to be under 18:
- as a victim of torture, cruelty, physical abuse or sexual abuse; or
- engaged in or appears to be engaging in a sexual pose or sexual activity; or
- in the presence of another person who is or appears to be engaged in a sexual pose or sexual activity; or
- shows the person’s genital or anal region or the breast area of a female
and which a reasonable person would regard as being, in the circumstances, offensive.
Under Commonwealth legislation, offences relating to this sort of material are divided into the two categories of ‘child abuse material’ and ‘child pornography material’ but cover the same sort of material. Under Victorian’ legislation, these two categories of material are combined in a single category.
What is the offence?
Section 51G of the Crimes Act 1958 contains Victorian child abuse material offences and specifies that a person commits a criminal offence if they knowingly possess child abuse material. It is not necessary for the accused to have physical possession of electronic files. The offence may consist of having access to material as long as the person can control the access to that material. The maximum penalty is 10 years imprisonment.
It is also a criminal offence in Victoria to access child abuse material (section 51H), to produce child abuse material (section 51C), to distribute child abuse material (section 51D) to administer a website used to deal with such material (section 51E) or to encourage use of a website used to deal with such material (section 51F).
Under Commonwealth legislation, there is an offence of using a carriage service to access child pornography material. This offence is contained in Section 474.19 of the Criminal Code Act 1995. Under this provision, a person can be prosecuted for
- Accessing material; or
- Sending material to oneself; or
- Transmitting, making available, publishing, distributing, advertising or promoting material; or
- Soliciting material.
The maximum penalty for this offence is imprisonment for 15 years.
What if I am charged with multiple offences?
It is common for a person who is apprehended with child abuse material to be charged with offences under both the Commonwealth and Victorian legislation or with more than one offence under the Victorian legislation. This is because it is common that the internet (a carriage service) is used to access the material and for the material to then be downloaded, leading to charges of possession of the material as well as of accessing the material. However, there are subtle differences between the two pieces of legislation that allow for multiple charges to be pursued.
The Commonwealth legislation prohibits the movement of child abuse material around online. These offences are designed to target the market for child abuse material through its circulation over the internet. The Victorian legislation is focused on possession of the material either physically or through online storage mediums.
There is significant overlap between different child abuse material offences; however, the courts take this overlap into account when they provide separate sentences for each charge, but they also take in to account the principles of ‘totality and parsimony’. This is the sentencing consideration that the penalties should be no more severe than is necessary for the whole course of offending behaviour.
In some circumstances, the defence may be able to negotiate with prosecutions for one or more child abuse material charges to be withdrawn if the offender pleads guilty to the other.
What factors are taken into account at sentencing?
A sentencing judge will take into account both objective and subjective factors.
The objective factors a court will consider include:
- That these sorts of offences are serious and general deterrence is of primary consideration;
- The nature and content of the material and the nature of the sexual activity depicted;
- The number of items, images or videos possessed;
- Whether the material was possessed for sale or further distribution; and
- How long the person possessed the material for.
The subjective factors that are taken into account include:
- The offender’s age;
- The offender’s mental health if there is evidence in psychologist reports;
- Prior good character or prior criminal history;
- The offender’s education and upbringing;
- Any other personal circumstances that the court considers relevant.
Registration as a Sex Offender
Under the Sex Offender Registration Act, offences relating to child pornography are Class 2 offences. Persons found guilty must report their details to police and keep police informed of their address, employment details and other matters specified under the legislation. The period that a person must comply with these requirements depends on the number of offences they were found guilty of but is often 8 or 15 years, which can extend to life in extreme cases.
Being on the Sex Offenders Registry can have a drastic effect on a person’s life and can prohibit them from doing certain types of work and other activities.
What should I do if I am charged?
If you are contacted by the Victoria Police or the Australian Federal Police in relation to any of the above offences, you should contact a solicitor at the earliest opportunity.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.