Child sexual abuse material charges
Conduct related to child abuse material (or child pornography) is liable to sex offence charges under both Victorian and Commonwealth legislation. Commonwealth legislation addresses the use of carriage services, such as the Internet, for access, transmission and procurement of child abuse material and aims to prevent the circulation of child abuse material online. Victorian legislation, however, focuses on the possession, whether physically or electronically, production and distribution of child abuse material. Convictions for possession, production, or distribution of child abuse material are considered especially grave (DPP (Cth) v Garside [2016] VSCA 74) and typically warrant an immediate term of imprisonment. Maximum penalties for these sex offences range from 10 to 15 years of imprisonment.Definition of child abuse material
In Victoria, child pornography or as it is now known, child abuse material, also known as child sexual abuse material (CSAM), comes in many forms and is defined broadly as material that depicts or describes a child being involved in torture, sex or nudity in circumstances that a reasonable person would regard as being offensive. Relevant definitions are contained in s 51A of the Crimes Act 1958, in which a “child” means a person under the age of 18 years. “child abuse material” means material that—(a) depicts or describes—
(i) a person who is, or who appears or is implied to be, a child—
(A) as a victim of torture, cruelty or physical abuse (whether or not the torture, cruelty or abuse is sexual); or
(B) as a victim of sexual abuse; or
(C) engaged in, or apparently engaging in, a sexual pose or sexual activity (whether or not in the presence of another person); or
(D) in the presence of another person who is engaged in, or apparently engaged in, a sexual pose or sexual activity; or
(ii) the genital or anal region of a person who is, or who appears or is implied to be, a child; or
(iii) the breast area of a person who is, or who appears or is implied to be, a female child; and
(b) reasonable persons would regard as being, in the circumstances, offensive.
The issue of whether a reasonable person would regard material as being offensive requires consideration of community standards and values. “material” means—(a) any film, audio, photograph, printed matter, image, computer game or text; or
(b) any electronic material; or
(c) any other thing of any kind.
Parliament has intentionally made the scope very wide, to catch all manner of things that resemble child abuse material.
Child abuse material offences
Several indictable sexual offences criminalise conduct dealing with child abuse material, or child pornography, under the Crimes Act 1958, including:
- Involving a child in the production of child abuse material (s51B)
- Producing child abuse material (s51C)
- Distributing child abuse material (s51D)
- Administering a website used to deal with child abuse material (s51E)
- Encouraging use of a website to deal with child abuse material (s51F)
- Possession of child abuse material (s51G)
- Accessing child abuse material (s51H)
- Assisting a person to avoid apprehension (s51I)
In Victoria, a maximum penalty or 10 years of imprisonment applies to a child abuse material sexual offence.
Possession of child abuse material
In Victoria, it is a sexual offence to knowingly possess child abuse material under section 51G of the Crimes Act 1958. The maximum penalty for the Victorian offence is 10 years of imprisonment.
The prosecution must prove three elements, beyond reasonable doubt, for a jury to find an accused person guilty of this offence:
- the accused possessed material
- the material was child abuse material
- the accused knowingly possessed child abuse material
(1) Possession
The first element that the prosecution must prove is that the accused intended to possess the material.
Possession is defined at common law and requires proof that the accused had custody or control of the material (R v Shew, He Kaw Teh v The Queen).
Once an accused has possession, even if they have forgotten about the existence of the material, they are considered to remain in possession of the material (Police v Kennedy).
A person possesses electronic material if they control access to the material. Physical possession is not required for this element to be satisfied (Crimes Act 1958 s 51G(3)).
(2) Child abuse material
The second element that the prosecution must prove is that the material is child abuse material. For example, this element will be satisfied if:
- the material depicts a person who is, or appears to be, a child;
- the child is engaged in a sexual pose or sexual activity; and
- a reasonable person would regard the material as offensive in all the circumstances.
See above definition of child abuse material in relation to this sexual offence.
(3) Knowingly possessed child abuse material
The third element requires proof that the accused ‘knowingly’ possessed child abuse material.
As with the offence of distribution, this element is likely to be satisfied if the accused knew that:
- the material depicted a person under 18 years;
- engaged in activity of a sexual nature; and
- a reasonable person would regard the material as being offensive in all the circumstances.
Section 51G provides two examples in which an accused (A) knowingly possesses child abuse material:
- A has control of an online storage account with a username and password. A names a folder ‘personal’ in which A puts child abuse material. A knowingly has possession of child abuse material.
- In an online chat A is given a password for a joint email account. A logs into the account and views emails containing child abuse material. A has the ability to view, move or delete emails containing child abuse material. A continues to access the account to view images. A knowingly has possession of child abuse material.
Importantly, it is not a defence if the accused was under a mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as being offensive.
Location of material
Provided that the accused was in Victoria at the time of the offending conduct, it is irrelevant if electronic material was located or stored outside Victoria (s51G(4)).
Distribution of child abuse material
In Victoria, it is a sexual offence to distribute child abuse material under section 51D the Crimes Act 1958.
The prosecution must prove three elements, beyond reasonable doubt, for a jury to find an accused person guilty of this offence:
- the accused intentionally distributed material
- the material was child abuse material; and
- the accused knew that the material was, or probably was, child abuse material.
(1) Intentionally distributed
The prosecution must prove that the accused intentionally distributed child abuse material. ‘Distribution’ under the Crimes Act 1958 s 51A(2)(b) includes:
- Publishing, exhibiting communicating, sending, supplying or transmitting the material to any other person; or
- Making the material available for access by any other person.
(2) Child abuse material
The second element that the prosecution must prove is that the material is child abuse material. For example, this element will be satisfied if:
- the material depicts a person who is, or appears to be, a child
- the child is engaged in a sexual pose or activity; and
- a reasonable person would regard the material as offensive in all the circumstances.
See definition of child abuse material in relation to this offence.
(3) Knowledge that material is child abuse material
The third element requires the prosecution to prove that the accused knew the material was, or probably was, child abuse material under the Crimes Act 1958 s 51D(1)(c).
As with the offence of possession, this element is likely to be satisfied if the accused knew that:
- the material depicted a person under 18 years; and
- engaged in activity of a sexual nature; and
- a reasonable person would regard the material as being offensive in all the circumstances.
Accessing child abuse material
In Victoria, it is a sexual offence to access child abuse material under section 51H the Crimes Act 1958.
The prosecution must prove three elements, beyond reasonable doubt, for a jury to find an accused person guilty of this sex offence:
- the accused intentionally accessed material
- the material was child abuse material; and
- the accused knew that the material was, or probably was, child abuse material.
The elements of this sexual offence are almost the same as the offence of distribution under section 51D; however, for the purposes of this sexual offence, ‘accessed‘ includes:
- viewing the material; or
- displaying material electronically.
Commonwealth child abuse material sex offence charges
As the Commonwealth Parliament has legislative power with respect to telecommunications, the use of the internet for child abuse material purposes, is also governed by Commonwealth law.
Commonwealth sexual offences related to child abuse material offences in the Criminal Code Act 1995 include:
- Possessing, controlling, producing, distributing or obtaining child abuse material outside Australia (s 273.6).
- Aggravated offence of possessing, controlling, producing, distributing or obtaining child abuse material outside Australia (s 273.7).
- Possession of child-like sex dolls (s 273A.1).
- Using a postal or similar service for child abuse materials (s 471.19).
- Possessing, controlling producing, supplying or obtaining child abuse material for use through a postal or similar service (s 471.20).
- Aggravated offences under s471.19 or s471.20 if conduct occurs on several occasions with 2 or more people (s 471.22).
- Use carriage service to transmit, make available, publish, distribute, advertise or promote child abuse material (s 474.22).
- Possess or control child abuse material obtained or accessed using carriage service (s 474.22A).
- Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service (s 474.23).
- Aggravated use of carriage service for child abuse material (s 474.24A).
Use of carriage service for child pornography material
The Commonwealth offence relating to access of child pornography is addressed by the offence of using a carriage service for child abuse material under section 474.22 of the Criminal Code Act 1995.
The maximum penalty for this sex offence is 15 years imprisonment.
The prosecution must prove the following elements, beyond reasonable doubt, for a jury to find an accused person guilty of this offence:
- the accused intentionally:
- accessed material;
- caused material to be transmitted to themself;
- transmitted, made available, published, distributed, advertised or promoted material; or
- solicited material; and
- the material is child pornography material;
- the accused was reckless as to whether the material is child pornography; and
- the accused used a carriage service to access the material.
(1) Intentionally engaged in the conduct
The prosecution must first prove that the accused intentionally engaged in only one form of the conduct listed above (see R v Walsh). That is, the accused intentionally either accessed, transmitted, made available, published, distributed, advertised, promoted material or solicited material. Proof of intention requires proof that the accused meant to engage in that form of conduct (Criminal Code s 5.2).
(2) Child pornography material
The second element is that the material is child pornography material. The Commonwealth definition of “child pornography material” is addressed under s 473.1 of the Criminal Code and captures the same material defined in Victorian legislation as “child abuse material”.
The Commonwealth definition requires the maker of the image to intend to depict a sexual pose, sexual activity or sexual organ of a child. A photo taken by a family member innocently depicting a naked child in the bath would not constitute child pornography or child abuse material (R v Silva).
While modern society treats certain child-like activity by adults as sexually suggestive, the same activity by children does not necessarily constitute child pornography, unless the depiction has been adopted for the purpose of providing sexual gratification to observers (see R v Silva).
Consistent with Victorian legislation, the definition of child pornography material under s 473.1 of the Criminal Code contains a requirement that the material depicts children in “a way that reasonable persons would regard as being offensive”.
In deciding whether reasonable persons would regard particular material as being offensive in the circumstances, the following factors are considered:
- The standards of morality, decency and propriety generally accepted by reasonable adults; and
- The literary, artistic or educational merit (if any) of the material; and
- The general character of the material (including whether it is of a medical, legal or scientific character (Criminal Code s473.4).
(3) Reckless as to whether the material was child pornography
The third element is that the accused is reckless about whether the material is child pornography material.
An accused person is considered reckless if:
- The accused is aware of a substantial risk that the material is child pornography material; and
- Having regard to the circumstances known to the accused, it is unjustifiable to take that risk (see Criminal Code s5.4).
This element will be satisfied if the prosecution can prove that the accused knew or intended that the material was child pornography material (Criminal Code s5.4(4)). That is:
- The accused intended that it was child pornography material if they believed it was child pornography material (Criminal Code s5.2(2)).
- The accused knew that it was child pornography material if they were aware that it was child pornography material (Criminal Code s5.3).
(4) Use of a carriage service
The final element is that the accused engaged in the conduct with the use of a carriage service (Criminal Code s474.19(1)(aa)).
For these sexual offences, “carriage service” is defined under section 7 of the Telecommunications Act 1997 (Cth) as a service for carrying communications by means of guided or unguided electromagnetic energy.
Use of a carriage service includes making a phone call, sending a message by facsimile, sending an SMS, or email or other means using the internet (R v Deblaquiere).
Under s473.5 of the Criminal Code, the following does not constitute “use of a carriage service”:
- A person acting in the capacity as a carrier;
- A person acting in the capacity as a carriage service provider;
- A person acting in the capacity as an internet service provider; or
- A person acting in the capacity as an internet content host.
Defences and exceptions to offences
There are several exceptions and defences to production, possession and distribution of child abuse material under the Crimes Act 1958.
It is a defence to the charge of possession (under Crimes Act 1958 s 51G) for the accused to prove, on the balance of probabilities, that:
- the accused did not intentionally possess the child abuse material; and
- upon becoming aware of being in possession of child abuse mater, the accused ceased to possess the material as soon as practicable (s 51T).
The following defences may also be available to a person accused of sexual offences under the Crimes Act 1958 (Vic) or the Criminal Code Act 1995 (Cth):
- The conduct was carried out in good faith in the course of duties connected with the administration of the law or it was for public benefit, such as for scientific, medical or educational research.
- The accused did not do the acts alleged (i.e. factual dispute, for example, mistaken identity).
- The possession was accidental.
- The accused acted under duress.
Sentencing child exploitation material offences
Maximum penalties for Victorian child abuse material offences are level 5 with up to 10 years of imprisonment (see Crimes Act 1958). Futhermore, child abuse material offences and sexual offences generally are categorised as Class 2 sexual offences under the Sex Offender Registration Act and a person found guilty of a sexual offence is subject to sex offender registration orders.
Maximum penalties for the Commonwealth child abuse material offences range from 15 to 30 years imprisonment for aggravated sexual offences. Even higher maximum penalties are available for aggravated child abuse material offences (e.g. s471.22 and s474.24A) if the offending conduct takes place on three or more occasions and involves two or more people.
Sentencing considerations for child abuse material offences
The sentencing considerations that apply to these types of sexual offences are distinct from contact-based sexual offences against children.
Considerations particularly relevant to sentencing child exploitation material include:
- General deterrence, the principle that fear of punishment prevents others from committing crimes, is the primary consideration when sentencing these sexual offences (DPP (Cth) v Zarb). However, general deterrence may cary less weight in certain circumstances, such as if an offender is young or has a mental ilness (DPP (Cth) v Watson)
- Limited weight is given to an offender’s prior good character or lack of criminal history (Mouscas v R). However, if the person’s standing in the community assisted in the commission of the sex offence, the Court takes that fact into account as a reason for aggravating the seriousness of the criminal conduct to which the sex offence relates (s16A of the Crimes Act 1914 (Cth)).
- Offending involving child pornography occurs on an international level and access is increasingly prevalent due to the relative anonymity and global reach created by the internet (R v Jones).
- The possession of child exploitation material creates a market for the continued corruption and exploitation of children (R v Coffey).
- There is a paramount public interest to promote protection of children abused to supply the child pornography market (R v Jones).
Aggravating factors
Common factors relevant to, and that may aggravate, an assessment of gravity and moral culpability for child abuse material offences include:
- Whether actual children, as opposed to representations of children, were used in the creation of the material;
- The duration of the offending or the length of time the material was possessed (e.g. DPP v Tewksbury);
- the nature and content of the material, including the age of children and the gravity of the sexual activity portrayed;
- The extent of any cruelty or physical harm to the children that may be discernible from the material;
- The number of images and the number of children depicted;
- The offender’s purpose for possession, whether for own use, sale or distribution;
- The number of people to whom the material was distributed;
- Whether payment was made or received for material for the acquisition or distribution of the material;
- The offender’s proximity to those responsible for the production of the material;
- The degree of planning and sophistication employed during the offending conduct;
- The risk of the material being seen or acquired by vulnerable people or those susceptible to act in the manner depicted.
This list is non-exhaustive, and many of these factors are discussed in Minehan v The Queen, which is freqently cited by Courts sentencing fro Commonweath child exploitation material sex offences.
The fact that an offender is charged only with accessing child pornography material, as opposed to the sale or distribution of material, does not mitigate the gravity of the offending (R v Porte).
When sentencing for offending conduct that may constitute multiple charges, the Court must not consider aggravating circumstances that have not been separately charged (per R v De Simoni).
Mitigating factors
Child pornography sex offences typically require a significant term of imprisonment. If powerful mitigating factors are present, however, a non-custodial sentence may be appropriate in some circumstances.
Often the most difficult decisions by sentencing Judges concern cases where the offending is very serious, and the mitigating factors are very powerful.
Powerful mitigating factors, considered relevant to an assessment of gravity and moral culpability for a child abuse material sex offence, have included:
- The vulnerability of an offender, such as if the offender had a mental condition, or had been a victim of sexual abuse and evidence shows that this abuse contributed to the offending (R v Cunningham);
- The young age of the offender at the time of offending conduct which may indicate that rehabilitation is likely;
- The moral culpability of an offender may be reduced if they were subject to persuasion or pressure to engage in the conduct.
For example, see DPP (Cth) v Hutchison, in which a 16 year old offender who had been subject to exploitation and grooming, was considered a vulnerable person, and was sentenced to a community corrections order (CCO) for 3.5 years for possessing child pornography.
What to do if charged with a child pornography offence
If you are facing charges or have been charged with a sexual offence, it is vital to obtain legal advice immediately. Sexual offence charges for child pornography can be overwhelming, and it’s an area of law that requires specialised expertise. Serious sexual offence matters, including sexual assaults, sexual assault charges and child abuse material offences, are highly complex and require a nuanced approach.
Experienced criminal lawyers specialise in this area and have a comprehensive understanding of the laws and procedures for those facing sexual offence charges. It’s crucial to seek legal advice without delay. An experienced criminal lawyer can navigate the legal system, protect your rights, and help formulate the best defence strategy tailored to your specific situation.
Child pornography charges have many applications to different circumstances. It is crucial to speak to a lawyer about your individual circumstances to understand how the law applies to your situation.
If you have been charged for dealing with child abuse material or child pornography, contact us immediately to make an appointment with one of our sex offence lawyers.
Child abuse material FAQs
What is child pornography (child abuse material)?
In Australia, both Commonwealth and Victorian laws have specific provisions defining child pornography, also referred to as child abuse material or child exploitation material.
Under Commonwealth law, child pornography is defined in the Criminal Code Act 1995 (Cth) as material that depicts a minor (a person under 18 years of age) engaged in sexual activity or in a sexual pose or context. It can also include material that describes such activity.
In Victoria, the Crimes Act 1958 (Vic) provides a similar definition, covering material that describes or depicts a person under 18 engaging in sexual activity or depicted in an indecent sexual manner or context.
Both jurisdictions criminalise the production, distribution, possession, and access of child abuse material and a conviction for sex crimes is subject to severe penalties.
Can you be charged under Victorian and Commonwealth law?
Yes, a person engaging in conduct related to child abuse material is liable to charges under both Victorian and Commonwealth legislation. While the definition of child abuse material is very similar, there are differences in how these laws are applied.
While there is significant overlap between these State and Federal sex offences, the Courts must consider the sentencing principles of ‘totality’ and ‘parsimony’ to ensure that penalties imposed are no more severe than necessary to address the nature of the sexual offending conduct.
What is the punishment for dealing with child pornography?
The criminal justice system sets severe penalties (or sentences) for offences related to child abuse material or child pornography under both Commonwealth and Victorian legislation in Australia. The Commonwealth Criminal Code Act 1995 stipulates a maximum penalty of 15 years imprisonment, while Victorian law, under the Crimes Act 1958, sets a maximum penalty of 10 years’ imprisonment. Courts may also require an offender to be registered as a sex offender.
