Understanding Child Exploitation Material Offences in NSW

Possessing child abuse material is a serious sex offence in New South Wales, carrying severe maximum penalties and long-term consequences. This guide provides an overview of the laws surrounding child abuse material, including the definition of the offence, potential defenses, and the court process. This information is intended to help you understand the legal complexities of child sexual abuse material charges and the importance of seeking legal advice if you are facing accusations.

What is Child Abuse Material?

In New South Wales, "child abuse material" has a specific legal definition outlined in Section 91FB of the Crimes Act. This definition is crucial to understand, as it determines what types of material are considered illegal. The criminal law states that child abuse material means any material that depicts or describes, in a way that a reasonable person would regard as being offensive, any of the following:

• A person who is, appears to be, or is implied to be, a child as a victim of torture, cruelty, or physical abuse.
• A person who is, appears to be, or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of another person).
• A person who is, appears to be, or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity.
• The private parts of a person who is, appears to be, or is implied to be, a child.

Determining Offensive Material

The law recognises that the concept of "offensive" can be subjective. Therefore, it provides specific guidelines on what factors should be considered when determining if material meets this standard. These factors include:

• The standards of morality, decency, and propriety generally accepted by reasonable adults. For instance, consider a situation where a photograph depicts a child in a sexually suggestive pose. Most reasonable adults would likely find this material offensive based on prevailing community standards.
• The literary, artistic, or educational merit (if any) of the material. This factor recognises that some material, while potentially containing elements that could be considered offensive, may have redeeming value due to its artistic, educational, or literary purpose.
• The journalistic merit (if any) of the material, specifically its value as a record or report of a matter of public interest. This factor allows for exceptions in cases where the material, while potentially offensive, serves a legitimate journalistic purpose in reporting on issues of public concern.
• The general character of the material, including whether it is of a medical, legal, or scientific character. This factor considers the context in which the material is presented. For example, a medical textbook containing anatomical diagrams of children would not be considered child abuse material, as it serves a legitimate medical purpose.

What are 'Private Parts'?

The law also provides a clear definition of "private parts" to avoid ambiguity. "Private parts" refer to a person's genital or anal area, whether or not covered by underwear or fully naked. It also includes the breasts of a female person or transgender or intersex person who identifies as female, whether or not the breasts are sexually developed. However, it's important to note that the "breasts of a female person" does not include the chest of a prepubescent girl.

Understanding these definitions is crucial when navigating the complex legal landscape of child abuse material offenses in New South Wales. If you are facing accusations related to these offences, it is vital to seek legal advice to understand how these definitions apply to your specific situation.

Offences Relating to Child Abuse Material

New South Wales law outlines several distinct offences related to child abuse material, each carrying its own penalties and legal implications. It's crucial to understand the differences between these types of offences, as the charges and potential consequences can vary significantly.

Using a Child to Produce Child Abuse Material

This offence, outlined in section 91G of the Crimes Act, specifically targets individuals who exploit children for the creation of child abuse material. It encompasses a range of actions, including using a child for the production of such material, causing or procuring a child to be so used, or consenting to a child in their care being used for this purpose.

To illustrate this concept, let's say an adult coerces a child into posing for sexually explicit photographs. This action would constitute the offence of using a child to produce child abuse material, even if the adult didn't personally take the photographs. The maximum penalty for this offence is 14 years imprisonment if the child is under 14 years old, and 10 years imprisonment if the child is 14 years or older.

Producing Child Abuse Material

Section 91H(2) of the Crimes Act deals with the act of creating child abuse material. This offence covers actions such as filming, photographing, printing, or otherwise creating such material. It also includes altering or manipulating existing images to create child abuse material.

For instance, consider a situation where an adult uses photo editing software to create a composite image that depicts a child in a sexual act. This action would be considered producing child abuse material, even if no actual child was involved in the creation of the original images.

Offence of Disseminating Child Abuse Material

Dissemination refers to the spread or distribution of child abuse material. Section 91H(2) of the Crimes Act criminalises a range of activities related to dissemination, including:

• Sending, supplying, exhibiting, transmitting, or communicating child abuse material to another person.
• Making child abuse material available for access by another person.
• Entering into an agreement or arrangement to distribute child abuse material.

To illustrate, an adult who shares child abuse material in an online chatroom, uploads it to a file-sharing website, or even sends a link to such material via email would be committing the offence of disseminating child abuse material.

Possessing Child Abuse Material

Possession of child abuse material is also a serious offence under section 91H(2) of the Crimes Act. This applies to any form of possession, including physical custody or control of material, as well as having control over data containing child abuse material stored on a computer or other electronic device.

For example, if an individual knowingly downloads child abuse material onto their computer or stores it on a USB drive, they would be guilty of possessing child abuse material, even if they never share it with anyone else.

It's crucial to remember that all of these offences carry significant penalties and can have long-term impacts on an individual's life. If you are facing charges related to child abuse material, seeking legal advice is essential to understand the specific charges against you and explore potential defence strategies.

Defenses to Child Abuse Material Charges

Facing charges related to child abuse material is a serious matter, but it's essential to remember that being accused does not automatically equate to guilt. Several legal defences may be available, depending on the specific circumstances of your case. These defences can potentially lead to an acquittal or a reduction in charges. Consulting with a criminal lawyer is crucial to determine which defences might apply to your situation and how to best present your case in court.

Lack of Knowledge Defence

One of the primary defences to child abuse material charges is the defence of lack of knowledge. This defence argues that you were not aware that the material in question was child abuse material. To successfully raise this defence, you would need to demonstrate that you had no reasonable grounds to suspect that the material depicted a person under 16 in a way that would be considered offensive.

For instance, consider a situation where an individual receives a file through a file-sharing program without any indication of its content. If they open the file and discover it contains child abuse material but immediately delete it without viewing it further, they might have a valid defence of lack of knowledge.

Unsolicited Receipt and Disposal

Another possible defence arises when child abuse material comes into your possession unsolicited. To rely on this defence, you must demonstrate two key elements:

1. The material came into your possession without your request or consent.
2. As soon as you became aware of the nature of the material, you took reasonable steps to get rid of it.

To illustrate, let's say a person receives an email containing child abuse material. They did not request this material, and upon opening the email and realising its content, they immediately deleted the email and all attachments without forwarding or saving the material. In this case, they might be able to successfully argue the defence of unsolicited receipt and disposal.

Public Benefit Defence

The law recognises that there are limited circumstances where possessing, disseminating, or producing child abuse material may be necessary for legitimate public benefit purposes. This defence is strictly limited to specific scenarios, such as law enforcement investigations, administration of justice, or approved research activities.

For example, law enforcement officers investigating a child exploitation ring might need to possess and analyse child abuse material as evidence to build a case against the perpetrators. Similarly, researchers studying the psychological effects of child abuse material might need access to such material under strict ethical guidelines and with appropriate authorisation.

Approved Research Defence

In New South Wales, using child abuse material for research purposes can be a valid defence if the research has been approved in writing by the Attorney General in accordance with section 91HA(8) of the Crimes Act and is conducted in accordance with strict guidelines. This defence allows for legitimate scientific, medical, or educational research while maintaining strict controls to prevent the misuse of child abuse material.

The research must meet specific criteria and be conducted under strict ethical guidelines and appropriate authorisation to qualify for this defence. Any unauthorised use or distribution of child abuse material outside the scope of the approved research would not be protected by this defence.

Depiction of Self Defence

Possessing child abuse material can be a defence if the material only depicts the individual possessing the material, and no other children. This defence is generally limited to cases where the material was created when the individual was a minor.

For example, if an individual possessed sexually explicit photographs of themselves taken when they were under 16 years old, they might be able to rely on this defence. However, it's important to note that this defence would not apply if the material was disseminated to others or if it depicted any other children besides themselves.

It is crucial to emphasise that these defences are complex legal concepts and their success depends on the specific facts of each case. Presenting a strong defence requires skilled legal representation and a thorough understanding of the relevant legislation and case law.

Legal Exception for Minors Possessing Child Abuse Material

While the possession of child abuse material is generally a serious offence, the law acknowledges that there may be circumstances where minors possess such material without any criminal intent or understanding of its nature. Section 91HB of the Crimes Act outlines a legal exception for individuals under 18 years old who possess child abuse material under certain conditions.

To qualify for this exception, several factors are taken into account:

• The nature and content of the material: This factor considers the severity of the material and the age of the child depicted.
• The circumstances in which the minor came to possess the material: For instance, consider a situation where a teenager receives an unsolicited image via social media that turns out to be child abuse material. The circumstances of how they came into possession of the material would be relevant in determining if the exception applies.
• The age, vulnerability, and circumstances of the child depicted in the material: The younger and more vulnerable the child depicted, the less likely this exception is to apply.
• The minor's own age, vulnerability, and circumstances: The law recognises that minors may have different levels of understanding about the nature and severity of child abuse material.
• The relationship between the minor and the child depicted in the material: If the minor and the child depicted know each other, this factor may also be considered.

To illustrate this concept, let's say a 16-year-old student receives a sexually explicit image of a classmate through a group chat. The student did not request the image, was unaware of its content before receiving it, and deletes it immediately upon realizing it is child abuse material. In this scenario, the legal exception for minors might apply, as the circumstances suggest a lack of criminal intent and an understanding of the material's severity.

However, it's crucial to emphasise that this exception is not a blanket defence for all minors who possess child abuse material. Each case will be assessed individually based on its specific facts, and the prosecution may still choose to pursue charges if they believe the circumstances warrant it.

Commonwealth Child Sexual Abuse Material Offences

While New South Wales law governs child abuse material offences within the state, federal legislation also plays a significant role in addressing this issue. The Commonwealth Criminal Code Act 1995 (Cth) (CCA), also known as the Criminal Code, establishes offences relating to child abuse material that apply across Australia. These offences often overlap with state laws but focus specifically on the use of carriage services, such as the internet and postal services, to commit these crimes.

The following is a summary of the main Commonwealth offences related to child abuse material:

• Using a postal service for child abuse material: Section 471.19 of the Criminal Code prohibits using the postal service or similar services for sending or delivering child abuse material.
• Possessing, controlling, producing, supplying, or obtaining child abuse material for use through a postal or similar service: Section 471.20 of the Criminal Code makes it illegal to engage in any of these activities if the intent is to use a postal service or similar service for distributing child abuse material.
• Using a carriage service for child abuse material: Section 474.22 of the Criminal Code deals with a range of actions involving carriage services and child abuse material. This includes accessing, transmitting, making available, publishing, distributing, advertising, promoting, or soliciting child abuse material using a carriage service. To illustrate, let's say a person downloads child abuse material from a website using their home internet connection. This would constitute the offence of using a carriage service for child abuse material.
• Possessing or controlling child abuse material obtained or accessed using a carriage service: Section 474.22A of the Criminal Code criminalises possessing or controlling child abuse material if it was obtained or accessed using a carriage service, regardless of whether the person intended to access it. For instance, if an individual inadvertently downloads child abuse material hidden within other files obtained online, they could still be charged under this section.
• Possessing, controlling, producing, supplying, or obtaining child abuse material for use through a carriage service: Section 474.23 of the Criminal Code targets individuals who engage in these activities with the intention of using a carriage service to further distribute or share child abuse material. For example, if someone downloads child abuse material with the intent to later upload it to a file-sharing platform, they would be committing an offence under this section.

These federal offences carry significant penalties and can be prosecuted alongside state charges. It is crucial to understand that engaging in any of these activities, even if done unintentionally, can have serious legal consequences.

Penalties for Child Exploitation Material Offences

Child abuse material offences are treated with the utmost seriousness by Australian courts. The penalties for these offences reflect society's strong condemnation of any action that exploits or endangers children. Both state and federal legislation prescribe severe punishments, including imprisonment, for those convicted of these crimes.

It is important to note that these are maximum penalties, and the actual sentence imposed will depend on various factors, such as the specific circumstances of the offence, the quantity and nature of the child abuse material involved, the age of the child, and the offender's prior criminal history. For example, an individual who possesses a small amount of child abuse material for personal use might receive a less severe sentence than someone who produces and distributes a large quantity of material for commercial purposes.

However, even in cases involving lesser amounts of material or no prior criminal history, courts often impose custodial sentences due to the serious nature of these offences and the need to protect children. The potential consequences of a conviction extend beyond imprisonment and can include registration on the Child Protection Register, restrictions on employment, and travel limitations.

The Court Process for Child Abuse Material Offences

Navigating the court system can be daunting, especially when facing serious criminal charges like child abuse material offenses. Understanding the court process, including which courts handle these cases and the potential for election to a higher court, is essential for anyone facing such accusations.

In New South Wales, child abuse material offenses are classified as Table 1 offenses under the Criminal Procedure Act 1986. This classification means that the prosecution has the option of electing to have the case heard in either the Local Court or the District Court. If the prosecution does not make an election, the case will be heard in the Local Court by default.

The decision of where to have the case heard is a strategic one and often depends on the severity of the alleged offences and the potential penalties involved. To illustrate this concept, let's say an individual is charged with possessing a small amount of child abuse material for personal use. The prosecution might choose to have the case heard in the Local Court, where the maximum penalty is lower. However, if the charges involve production or dissemination of a large quantity of child abuse material, the prosecution might elect to have the case heard in the District Court, where the potential penalties are more severe.

The accused also has the right to elect to have the case heard in the District Court, even if the prosecution initially chooses the Local Court. This decision might be made if the accused believes they have a stronger chance of acquittal in a jury trial, which is available in the District Court but not in the Local Court.

It is important to note that regardless of which court hears the case, the standard of proof remains the same: the prosecution must prove beyond a reasonable doubt that you committed the alleged offence. However, the procedures and potential outcomes can differ significantly between the two courts. Seeking legal advice early on is crucial to understand your options, the potential consequences of each court choice, and how to best navigate the legal process.

Conclusion

Child abuse material offences are among the most serious crimes in Australia. The law reflects society's abhorrence of any action that exploits or endangers children. The penalties for these offenses can be severe, and it is crucial to seek legal advice if you are facing accusations or charges related to child abuse material.

Remember that you have the right to remain silent and to have legal representation throughout the legal process.

Frequently Asked Questions about Child Abuse Material Offences

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