s70 Possession of Child Pornography (Repealed 1 July 2017)

Have you been charged with Possession of Child Pornography?

***Please be aware this section has now been repealed and the correct and current law exists in relation to the charge of Possession of Child Pornography is found at s51G of the Crimes Act 1958.***

The new section was introduced by the Crimes Amendment (Sexual Offences) Act 2016 (No. 47 of 2016) and came into operation on 1 July 2017.

This means that where the offence date predates 1 July 2017, the prosecution must proceed under the old section. The old section is s70 of the Crimes Act 1958, which has been repealed and no longer exists but is still relevant for old offences. The new and old sections have a number of similarities.

Interestingly, the old section that was introduced on 1 January 1996 initially proscribed the age of a child to be under 16, later the defined age of a child was increased to under 18, this applies to all charges with an offence date after 18 May 2004.

In relation to the old charge;

There are several valid defences to this charge. A criminal lawyer can go through them with you to see if any are applicable to your matter.

There is an excellent analysis on the judicial college outlining all the relevant elements in relation to the charge of child pornography.

Questions to consider?

• Can the prosecution make out their case?
• Did you possess a film, photo, publication or computer game depicting, or appearing to depict, a minor engaged in sexual activity or in an indecent sexual manner or context?
• Did you know the person was a minor?
• What was the classification of the film, publication or computer game? Did you have a valid reason to be in possession of the child pornography?

These are the type of question that needs to be considered prior to telling the Court how you intend to plead.

Please read below for more information in relation to this charge.

The offence of Child Possession of Pornography

Section 70 of the Crimes Act 1958.

The prosecution must prove:

1. The defendant possessed a film, photograph, publication or computer game;

2. The film, photograph, publication or computer game described or depicted a person;

3. The person was or appeared to be a minor;

4. The person was depicted:

   1. Engaging in sexual activity, or

   2. In an indecent sexual manner or context.

The Maximum Penalty for Child Pornography Possession

Level 6 imprisonment being a maximum of 5 years

Where will my case be heard?

Possession of Child Pornography cases will sometimes be heard in the Magistrates Court in relation to a small amount of images but more often than not will be heard in the Magistrates’ Court of Victoria.

Questions to consider

Do you have a defence?

If you are pleading guilty, what can you do to minimise your sentence?

What to do next?

Consult an experienced criminal lawyer urgently. The more time your lawyer has to prepare your matter, the greater the chance of a positive outcome.

If you have been charged with Possession of Child Pornography make an appointment to see one of our experienced lawyers today.

The legislation

70 Possession of child pornography

1. A person who knowingly possesses child pornography is guilty of an indictable offence.

Penalty: Level 6 imprisonment (5 years maximum).

2. It is a defence to a prosecution for an offence against subsection (1) to prove—

(a) in the case of—

(i) a film; or

(ii) a photograph contained in a publication; or

(iii) a computer game—

that at the time of the alleged offence the film, publication or computer game was classified other than RC or X or X 18+ or would, if classified, be classified other than RC or X or X 18+; or

(b) that the film, photograph, publication or computer game possesses artistic merit or is for a genuine medical, legal, scientific or educational purpose; or

(c) that the accused believed on reasonable grounds that the minor was aged 18 years or older or that he or she was married to the minor; or

(d) that the accused made the film or took the photograph or was given the film or photograph by the minor and that, at the time of making, taking or being given the film or photograph, the accused was not more than 2 years older than the minor was or appeared to be; or

(e) that the minor or one of the minors depicted in the film or photograph is the accused.

3. Despite subsection (2)(b), the defence of artistic merit cannot be relied on in a case where the prosecution proves that the minor was actually under the age of 18 years.

Nothing in this section makes it an offence for—

1. any member or officer of a law enforcement agency; or

2. a person authorised in writing by the Chief Commissioner of Police assisting such a member or officer; or

3. a person belonging to a class of persons authorised in writing by the Chief Commissioner of Police assisting such a member or officer—

to have child pornography in his or her possession in the exercise or performance of a power, function or duty conferred or imposed on the member or officer by or under this or any other Act or at common law.