Possess, produce or disseminate child abuse material

What is the offence?

It is an offence under s 91H of the Crimes Act 1900 (NSW) to be found in possession of child abuse material.

This offence is a Table 1 offence which means that it is an offence which may be elected upon to be dealt with in the District Court of New South Wales. If there is no election made, it will be dealt with in the Local Court of New South Wales.

What must be proven?

To establish the offence, the prosecution must provide beyond reasonable doubt that:

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

For a person to be found guilty of this offence, it must be established that the material itself is child abuse material as defined in s 91FB of the Crimes Act 1900 (NSW). Whether material is child abuse material as opposed to material which simply depicts a child turns on whether the video or images, as they case may be, objectively depicts the child in an offensive way or in a sexual way.

1. What is child abuse material?

Section 91FB of the Crimes Act 1900 (NSW) defines child abuse material as material that depicts or describes, in a way that reasonable persons would describe as being, in all the circumstances, offensive. It includes material depicting:

1. A person who is, appears to be or is implied to be, a child as a victim of torture, cruelty, or physical abuse, or
2. 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), or
3. 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
4. The private parts of a person who is, appears to be or is implied to be, a child.

The 'private parts' of a person that appears to be or is implied to be a child includes:

• A person's genital area or anal area, whether bare or covered by underwear, or
• The breasts of a female person, or transgender or intersex person identifying as female, whether or not they are sexually developed, or
• Other material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child).

For the purposes of this offence, a child is defined to be a person under the age of 16.

The test of determining whether an image or a document depicting a child in a manner offensive to a reasonable person is an objective one. It requires consideration of the following matters:

1. The standards of morality, decency, and propriety generally accepted by reasonable adults, and
2. The literary, artistic, or educational merit (if any) of the material, and
3. The journalistic merit (if any) of the material, being the merit of the material as a record or report of the matter of public interest, and
4. The general character of the material (including whether it is of a medical, legal, or scientific character).

This definition is very broad and can encompass a wide range of material including photographs, drawings, cartoons, videos, stories, or other written work.

2. What is possession?

To be in possession means to have physical custody or control of or access to the data amounting to child abuse material.

It includes the possession of material in the form of data stored on a computer or data storage device.

3. What is dissemination?

To disseminate material is to:

• Send, supply, exhibit, transmit, or communicate the material to another person, or
• Make it available for access by another person, or
• Enter into an agreement or arrangement to do so.

4. What is production?

To produce child abuse material is to engage in any of the following conduct:

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

What are the maximum penalties?

The maximum penalty for an offence of this nature is 10 years imprisonment.

There are different types of penalties which are available to a judicial officer. These are listed below, from least serious to the most serious:

• A section 10 dismissal,
• A conditional release order without conviction,
• A conditional release order with conviction,
• A fine,
• A community corrections order, and
• Full-time imprisonment.

Judicial officers regularly reinforce that the maximum penalties the legislature has set for offending of this nature are reflective of the community abhorrence of and concern related to the exploitation of children who are amongst the most vulnerable and susceptible to sexual abuse. This has led judicial officers to often imposing condign punishments suitable to the objective criminality of the offence.

In recent years, there have been several judgments handed down which set out a list of factors to be taken into account when assessing the objective criminality of an offence of this nature. These factors include:

1. Whether actual children were used in the creation of the material.
2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
4. The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.
5. In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination.
6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.
7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided, or received for the acquisition or dissemination/transmission.
8. The proximity of the offender's activities to those responsible for bringing the material into existence.
9. The degree of planning, organisation, sophistication, and/or deception employed by the offender in acquiring, storing, disseminating, or transmitting the material.
10. The age of any person with whom the offender was in communication with, in connection with the acquisition or dissemination of the material relative to the age of the offender.
11. Whether the offender acted alone or in a collaborative network of like-minded persons.
12. Any risk of the material being seen or acquired by vulnerable persons, particularly children.
13. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
14. Any other matter in s 21A(2) or (3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) bearing upon the objective seriousness of the offence.

Minehan v R [2010] NSWCCA 140. Later endorsed and expanded upon in R v Hutchinson [2018] NSWCCA 152 at [45].

It is important to remember that this is a non-exhaustive list of matters which may be taken into account when assessing the objective criminality of an accused person's behaviour. It does not prohibit judicial officers from taking into consideration often features relevant to the assessment of the objective seriousness of the offence.

1. Will I go to gaol?

The Court is able to order non-custodial alternatives to imprisonment which would allow you to remain in the community under a certain level of supervision. It may include additional conditions that you undertake unpaid work in the community, and that you partake in rehabilitation or treatment, as is reasonably recommended.

An offence of this nature is referred to as a 'prescribed sexual offence'. This means that a Court is prohibited from sentencing you to a suspended sentence of full-time imprisonment, like an Intensive Corrections Order.

If the Court deems that your offending is of such a serious nature a sentence of full-time imprisonment may be imposed against you.

What are the possible defences?

The statutory defences available for this offence are found in s 91HA of the Crimes Act 1900 (NSW). These include:

• You did not know, and could not reasonably be expected to have known, that you did produce, disseminate, or possess child abuse material, or
• The material was obtained for the administration of the law or for the purposes of justice, or
• On becoming aware that the digital platform was being used to deal with child abuse material, you took all reasonable steps in the circumstances to prevent other persons from being able to use the digital platform to access the child abuse material; or
• In offences involving possession only, it is a defence in the proceedings if it can be established that the material came into your possession unsolicited and you, as soon as you became aware of its nature, took reasonable steps to get rid of it.
• The conduct engaged in by you was necessary for or of assistance in conducting scientific research, medical or educational research that has been approved by Attorney General, or
• If the production or dissemination of the material occurred when you were under the age of 18 and only depicted images of yourself.

Child Protection Register

If a finding of guilt is made against you for an offence of this nature, you will be placed onto the Child Protection Register. The Child Protection Register operates in conjunction with each penalty imposed by the Court. Its purpose is to control and to monitor the conduct of a person found to pose a danger to children.

The Child Protection (Offenders Registration) Act 2000 (NSW) creates two classes of offences for which persons can be placed onto the Register:

1. Reporting periods

The period of time for which you will be required to report will depend upon the type and amount of offence(s) in which you were found guilty. The applicable periods are as follows:

2. What are the reporting obligations?

After you are served with a notice that you are a registrable person, you will be required to provide an initial report of the following information:

• Your full name and any other name you have previously been known by,
• Date of birth,
• You address(es),
• The name and date of birth of each child who generally resides in the same household as you,
• The nature of your work, the address of each premises you work at, and the name of your employer,
• Details of any affiliation you have with any club or organisation that has a child membership or child participation,
• The make, model, colour, and registration number of any vehicle that is owned or hired by you,
• Details of any tattoo or permanent distinguishing mark that you have,
• Whether you have been found guilty, in any foreign jurisdiction, of a registrable offence, or had to report to a similar register,
• Whether you have been in custody in respect of a registrable offence,
• If you intend to leave New South Wales to travel elsewhere in Australia on an average of at least one month, then reason for travelling, frequency and duration of the travel,
• Details of any carriage service you use or intend to use. Including any phone numbers used or intended to be used by you,
• Details of any internet service provider or provider of a carriage service used, or intended to be used, by you,
• Details of the type of internet connection used,
• Details of any email addresses, internet usernames, instant messaging usernames, chat room usernames or any other usernames or identity used, or intended to be used, by you through the internet or any other electronic communication service, and
• Any other information prescribed by the regulations.

You will be required to report annually with this list of information. If there are any changes to the information provided, you will be required to notify the Police within 7 days of making such a change.

It is an offence under s 17 of the Child Protection (Offenders Registration) Act 2000 (NSW) to fail to comply with your reporting obligations, without a reasonable excuse. This carries a maximum penalty of five years imprisonment and/or a fine of $55,000.00.

It is an offence under s 18 of the Child Protection (Offenders Registration) Act 2000 (NSW) to knowingly provide false or misleading information. This carries a maximum penalty of five years imprisonment and/or a fine of $55,000.00.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.