There are many offences related to child pornography under both state and commonwealth law. One of the most common charges is the possession of child abuse material.

Many people search for pornographic images on the internet. Being in possession of such material is not an offence unless the image involves prohibited content. A person may accidentally stumble onto such material or not understand that it is prohibited. If the data remains stored on their computer, this could result in criminal charges.

 

Possession of child abuse material

Since 2010, “child pornography” has been referred to as “child abuse material” in legal terms. Under section 91H of the Crimes Act 1900 (NSW) the production, dissemination, or possession of child abuse material is an offence.

 

What is child abuse material?

Child abuse material depicts children in ways that a reasonable person would consider offensive. This includes when the child appears to be:

  • A victim of torture, cruelty or physical abuse.
  • Engaged in a sexual pose or sexual activity.
  • In the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity.
  • Depicted with their private parts exposed.

A child is considered someone less than 16 years of age.

In determining whether the material is offensive, the court will consider:

  • Generally accepted standards of morality, decency, and propriety,
  • The literary, artistic, educational, or journalistic merit of the material (if any) and,
  • The general character of the material (including whether it is of a medical, legal, or scientific character).

 

Potential penalties for child pornography offences

The maximum penalty for producing, disseminating or possessing child abuse material is 10 years imprisonment. If the matter is heard in the Local Court the maximum penalty is two years imprisonment.

Other penalties such as a Community Correction Order or Intensive Correction Order could be imposed, however this offence is taken very seriously, and in both courts, most offenders receive a prison sentence.

A person found guilty under section 91H may be placed on the NSW Child Protection Register and subject to detailed reporting requirements. Under the Child Protection (Offenders Prohibition Orders) Act 2004, a Local Court can then make orders restricting the conduct of people placed on the register, prohibiting them from travelling, being in certain locations, or from contacting specific people.

 

Frequently Asked Questions

Which court will hear the matter?

The offences of production, dissemination, or possession of child abuse material will ordinarily be dealt with in the Local Court. In rare circumstances, they may be heard in the District Court, but this would usually only occur if a defendant is also charged with further more serious offences that must be dealt with by the District Court.

What will the court consider in deciding a sentence for possession of child abuse material?

To determine the seriousness of the offence and the severity of the punishment, the judge can consider several factors including:

  • The nature and content of the pornographic material, including the age of the children and the gravity of the sexual activity portrayed.
  • The number of images.
  • Whether the possession or importation was for the purpose of sale or distribution.
  • Whether the offender will profit from the offence.

What are the possible defences?

There are several defences which may be available under the Crimes Act including:

  • You did not know that you produced, disseminated or possessed child abuse material.
  • The material came into your possession involuntarily and, as soon as you became aware of it, you tried to get rid of it.
  • Your conduct was of public benefit.
  • You are a law enforcement officer acting reasonably in the course of your duties.
  • The material was classified under the Classification (Publications, Films and Computer Games) Act 1995.
  • You were conducting approved research.
  • You produced, disseminated, or possessed images of yourself.

Other defences might also help you avoid a criminal conviction.

What are the Commonwealth offences?

Child abuse material offences are also prohibited under federal law. The main offences relate to the use of the postal service or carriage services (the internet or telecommunications) to exchange child abuse material. Under the Criminal Code (Cth) it is an offence to:

  • Use a postal service for child pornography or child abuse material.
  • Possess, control, produce, supply or obtain child pornography or child abuse material for use through a postal or similar service.
  • Use a carriage service to access, transmit, make available, publish, distribute, advertise, promote or solicit child pornography or child abuse material.
  • Possess, control, produce, supply or obtain child pornography or child abuse material for use by the offender or another person to commit an offence.

As most people obtain child abuse material from the internet, the possession of child abuse material under NSW laws is often charged alongside these Commonwealth offences.

How can we help?

We are experienced in successfully defending child pornography charges.

Book a consultation or call us on 1300 668 484 for 24/7 legal advice.