As defined under section 91FB of the Crimes Act 1900, child abuse material means
“material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive–
(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
(b) 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 other persons), or
(c) 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, or
(d) the private parts of a person who is, appears to be or is implied to be, a child.”
To “possess” child abuse material includes being in possession or in control of data, with possession meaning:
To “disseminate” child abuse material includes:
To “produce” child abuse material includes:
Examples of Produce Child Abuse Material include:
Taking pictures of a naked child under the age of 16;
Filming a child in a sexual act.
Examples of disseminating material include:
Emailing a naked picture of a child under 16;
Making an agreement with another person to provide pornographic material of children under the age of 16;
Post a video of a child committing a sexual act on the internet.
Examples of possessing material include:
Having a magazine of naked children under the age of 16;
Have a video on your computer of a child being tortured.
As outlined under Section 91H of the Crimes Act 1900 (NSW), it is an offence to produce, disseminate or possess child abuse material. Those found guilty of this offence are liable to a maximum penalty of 10 years imprisonment.
As outlined under the Child Protection (Offenders Registration), Act 2000, the Child Protection Register holds the details of child sex offenders. A “registrable person” is an individual who has committed either a Class 1 or a Class 2 offence. This includes offences involving child pornography or child abuse material, and as such, if an individual is found guilty of possessing, disseminating or producing child abuse material, they will be listed on the Child Protection Register.
The charge of possession, dissemination or production of child abuse material is a Table 1 offence, meaning either the prosecution or the defence may elect to have the matter heard in the District Court. If no election is made, it will be dealt with in the Local Court.
The production, dissemination and possession of child abuse material is considered a serious offence, carrying a maximum sentence of 10 years imprisonment. However, the court reserves the judicial discretion to sentence an accused to various algernative penalties including:
If an individual has been accused of this offence however believes there is a valid reasoning for their actions, there may be a relevant legal defence which, if successful, may result in an acquittal or mitigated sentence.
These defences include where:
A legislated exception to child abuse material charges is that:
If you plead guilty to a charge of possessing, disseminating or producing child abuse material, you agree that the prosecution can prove each of the elements of the offence that you have been charged with, against you. Pleading guilty early if you have committed the offence will provide you with the best possible outcome.
If you are choosing to plead guilty, an earlier plea most often entitles you to a lesser sentence, with a current maximum discount of 25% for an early plea. Your case will be heard in a sentencing hearing, where the Hamilton Janke team can assist you in achieving the best possible outcome for the circumstances of your case.
If you disagree with the allegations made against you, or you have a defence, you may enter a plea of not guilty. In these circumstances, your case will be committed to being heard in either the local or district court, where both the defence and prosecution can present their cases before a Magistrate or panel of 12 jurors and judge.
If you enter a plea of not guilty, you will not be found guilty of the offence unless the prosecution is able to prove to the judge or jury beyond a reasonable doubt the elements of the charge.
As a criminal offence in NSW, the burden of proof lies on the prosecution to prove the elements of the offence beyond a reasonable doubt.
The prosecution must prove beyond a reasonable doubt that:
If the prosecution cannot prove these elements beyond a reasonable doubt you will be found not guilty of the offence and the charges dismissed.
Hamilton Janke Lawyers are one of the top rated Criminal Law Firms in the region. We treat every client with the respect and commitment they deserve. This commitment to our profession has earned us a reputation which we are very proud.
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