Child Pornography Offences in NSW

Child pornography has been referred to as child abuse material in legal terms since 2010. Child abuse material is classified as the sexualised portrayal of children under 16 or in some cases 18. This applies under the NSW and Commonwealth laws. Section 91G and 91H of the Crimes Act 1900 in NSW criminalises child abuse material of a child under the age of 16 years and makes it illegal for a person to produce, distribute, or have possession of child abuse material. 

According to the Crimes Act 1900 (NSW), child abuse material is material that depicts or describes the following in a way that a reasonable person would regard in all circumstances as offensive.

·        A person who appears to be, or is implied as a child who is the victim of torture, cruelty, or sexual abuse

·        A child who is engaged in a sexual pose or sexual activity

·        A child in the presence of a person who is engaged in a sexual pose or sexual activity

·        Depicted with their “private parts” exposed (“private parts” is defined as genitals, breasts, or anus – bare or covered by underwear) of what appears to be or is implied to be, a child

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

·        Moral standards, decency, and propriety accepted by reasonable adults

·        The literary, artistic, journalistic, or educational merit of the material

·        The general character of the material (medical, legal, or scientific)

The law only makes the material illegal if reasonable persons would find the material offensive, taking into account prevailing moral standards, the material’s artistic or educational merit, and the material’s general character. If the material is for journalistic merit, it should be noted if the material is for records or to report a matter of public interest.  A photograph in a medical text might be acceptable but the same photograph in an entertainment magazine might be illegal.

The Possession, Distribution, or Production of Child Abuse Material in NSW

The prosecution has to establish the offence and prove beyond a reasonable doubt that the accused produced, distributed, and possessed material with intent and that the material is child abuse material. For this offence, a child is a person under the age of 16 years. 

Possession of child abuse material         

Possession includes intentional physical custody or control of child pornography or child abuse material in the form of data. The material exploits or abuse children under the age of 16. 

Possession may be:

·        On a computer or a data storage device holding or containing data

·        On a computer that is in the possession of another person in the NSW jurisdiction or outside the NSW jurisdiction.

Examples of possessing child material are having a magazine of naked children under the age of 16 or having a video of a computer of a child being tortured. 

The Distribution of child abuse material

The distribution or dissemination of child abuse material according to Section 91H(1) of the Crimes Act 1900 (NSW) includes:

·        The sending, supplying, exhibiting, transmitting, or communicating of material to another person

·        Making any child abuse material available for access by another person

·        Entering into any agreement or arrangement with any person to do so

Examples of distributing child abuse material are posting a video of a child committing a sexual act on the internet, emailing a naked picture of a child under 16, or making an agreement with another person to provide pornographic material of a child under the age of 16. 

The Production of child abuse material

Section 91H(1) of the Crimes Act 1900 (NSW) states that the offence of producing child abuse material includes:

·        The filming, photographing, printing, or otherwise making child abuse material

·        The altering or manipulating of any image of a child to make child abuse material

·        Entering into any agreement or arrangement with any person to do so

Examples of producing child abuse material are taking pictures of a naked child under the age of 16 or filming a child in a sexual act. 

A possible exception to these offences is:

·        The possession of the material occurred when the accused were under 18

·        A reasonable person would consider the possession of child abuse material acceptable considering:

–       The content and nature of the child abuse material

–       The circumstances whereby the accused came to possess the child abuse material

–       The age, vulnerability, and circumstances of the child depicted in the child abuse material

–       The age, vulnerability, and circumstances of the accused

–       The relationship between the accused and the depicted child

Penalties for the Possession, Distribution, or Production of Child Abuse Material

The offences of production, distribution, or possession of child abuse material are a Table 1 offence and will be heard in the District Court of New South Wales. If no election is made by the defence or the prosecution to appear in the District Court the matter will be dealt with in the Local Court. 

The Court will consider several factors to determine the seriousness of the offence and the severity of the punishment. Penalties can vary and the Court will consider the nature and the content of the pornographic material, including the age of the children and the gravity of the sexual activity portrayed. The Court will consider the number of images, and whether the possession was for profit or distribution.

The Possession, Distribution, and Production of Child Abuse Material

Under Section 91H of the Crimes Act 1900 (NSW), the offence of possession, distribution, or production of child abuse material is punishable by a maximum sentence of 10 years in the District Court. The maximum penalty will be two years if the matter is heard in the Local Court. 

Use a Child to Create Child Abuse Material

Child exploitation lawyers are also extremely serious. If a person uses a child to produce child abuse material the offence is punishable by a maximum sentence of:

·        14 years in prison if the child is under the age of 14 under Section 91G(1) of the Crimes Act 1900 (NSW)

·        10 years in prison if the child is age 14 – 16 under Section 91G(2) of the Crimes Act 1900 (NSW)

Other Penalties

Other penalties can also be imposed such as Community Correction Order or Intensive Correction Order. However, these offences are deemed very serious and most offenders receive a prison sentence in the Local and District Court. An offender found guilty under Section 91H of the Crimes Act 1900 may be placed on the NSW Child Protection Register. The offender will be subject to detailed reporting requirements. 

A Local Court can make orders restricting the conduct of people under the Child Protection (Offenders Prohibition Orders) Act 2004. The Local Court can prohibit offenders from traveling, being in certain locations, or contacting specific people.

Main Offences for Child Abuse Material under the Commonwealth Law in Australia

Child abuse material offences are also prohibited under federal law in Australia. The main offences for child pornography laws Australia relate to the use of a carriage service such as the internet or telecommunications, or the postal service to distribute or exchange child abuse material. A carriage service is a service for carrying communications u guided or using electromagnetic energy such as text messages, phone calls, or internet transmissions.

It is an offence under the Criminal Code (Cth) to:

·        Use a postal service for child abuse material

·        Possess, control, produce, supply, or obtain 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 abuse material

·        Possess, control, produce, supply, or obtain child abuse material for use by one or more offenders to commit an offence

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

The penalties in Australia for possessing, controlling, producing, supplying, or obtaining child abuse material using a carriage service under Commonwealth Law is severe and the charge is contained in Section 474.23 of the Criminal Code Act 1995 (Cth). 

This Commonwealth offence applies throughout Australia and the prosecution must prove beyond a reasonable doubt that:

·        The offender possessed, controlled, produced, supplied, or obtained material

·        The material was child abuse material depicting a child under 18 years of age

·        The offender intended by his/her conduct for the material to be used by him/her or by another person to use a carriage service for child abuse material. This is an offence under Section 474.22 of the Act. 

This offence carries a maximum penalty of fifteen years imprisonment. 

The prosecution must prove beyond a reasonable doubt under Section 474.22 the offence of using a carriage service for child abuse material that:

·        The offender accessed material, transmitted material, had material transmitted to him/her, made available, published, distributed, advertised, promoted, or solicited material

·        The offender used a carriage service

·        The material was child abuse material

This offence carries a maximum penalty of fifteen years imprisonment.

There are higher maximum penalties for aggravated offences. These aggravated offences can be where the offending sexual activity takes place on three or more occasions, if the sexual activity involves a child with mental impairment or if the offender cares, supervise or have authority over the child. 

Possible Defences to Child Pornography

The possible defences for possessing, distributing, or producing child abuse material are outlined in Section 91HA of the Crimes Act 1900 (NSW). 

·        The accused did not know, and could not reasonably have known, that he/she possessed, distributed, or produced child abuse material

·        The alleged offender took possession of the child abuse material involuntarily and, tried to dispose of it as soon as the offender became aware of it

·        The alleged offender did not know or could not reasonably be expected to know that he/she had possession of child abuse material

·        The alleged offender’s conduct was for the public benefit for example enforcing or administering a law

·        The alleged offender was a law enforcement officer acting in the course of duty

·        The material was classified for publication in scientific, medical, or educational publications

·        The use of the material was approved for research

·        The material depicts only the offender

The offences and the penalties for child abuse material or child pornography laws in NSW are serious and result in jail time more often than not. Disseminating or producing child abuse material attract even more serious penalties. The criminal lawyers of Lyons Law Group have vast experience in this field. The legalities can be very confusing and it is important to understand the classification of child abuse material. You should contact experienced criminal defence lawyer to help you negotiate the legalities involved with this offence.