What constitutes possession of child abuse material?

Child Abuse Material

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: 

  1. Has any such property in his or her custody, or 
  2. Knowingly has any such property in the custody of another person, or 
  3. Knowingly has any such property in a house, building, lodging, apartment, field or another place, whether belonging to the individual or not, and whether such property is there had or placed for his or her own use, or the use of another.


To “disseminate” child abuse material includes: 

  1. Send, supply, exhibit, transmit or communicate it to another person, or 
  2. Make it available for access by another person, or 
  3. Enter into any agreement or arrangement to do so


To “produce” child abuse material includes: 

  1. Film, photograph, print or otherwise make child abuse material, or 
  2. Alter or manipulate any image for the purpose of making child abuse material, or 
  3. Enter into any agreement or arrangement to do so

What Actions Might Constitute the Offence of Producing, Disseminating or Posessing Child Exploitation Material?

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.

Criminal Offence

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.

Will I be put on the Child Protection register?

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.

What court will hear your matter?

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.

Possible Penalties

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: 

  • Conditional Release Order
  • Community Corrections Order 
  • Intensive Corrections Order
  • Custodial Sentence

Possible Defences

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: 

  • The accused did not know, and could not reasonably have known, that they possessed, disseminated or produced the material 
  • The accused conduct benefited the public through law enforcement or administration, or the administration of justice, and did not extend beyond it, 
  • The material received a classification for publication, 
  • The use of material was approved by the Attorney-General for research
  • The material depicts you and would not be child abuse material in the absence of your image 
  • The accused received the material unsolicited and took reasonable steps to get rid of it upon becoming aware of its nature.

Legal Exception

A legislated exception to child abuse material charges is that: 

  • The accused person possessed the material when they were under the age of 18, or
  • A reasonable person would regard the possession of the material as acceptable after considering the following factors;
    • the nature and content of the material,
    • the circumstances in which the material was produced and came into the possession of the accused person,
    • the age, intellectual capacity, vulnerability or other relevant circumstances of the child depicted in the material,
    • the age, intellectual capacity, vulnerability or other relevant circumstances of the accused person at the time the accused person first came into possession of the material and at the time that the accused person’s possession of the material first came to the attention of a police officer,
    • the relationship between the accused person and the child depicted in the material

Pleading Guilty

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.

Pleading Not Guilty

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.

Burden of Proof

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: 

  • The accused possessed, disseminated or produced material, and 
  • The material was child abuse material 

If the prosecution cannot prove these elements beyond a reasonable doubt you will be found not guilty of the offence and the charges dismissed.

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