Possession of Child Abuse (Child Pornography) Material Charges in Melbourne, Victoria
Possession of child abuse material or as it is commonly known child pornography is a very very serious crime, that can and often will result in an immediate custodial sentence, but not always.
If you are pleading guilty, which should only be determined once you have sat down with an experienced lawyer, there are many things that can be done to mitigate any sentence and avoid an immediate prison sentence such as
- Assistance in finding specialist help to demonstrate to the court that rehabilitation has occurred.
- Consideration of the classification of the materials, certain classes of child pornography or child abuse materials are less serious than others, sometimes police get it wrong when undertaking a classification of the materials.
- A very detailed consideration of your personal history considered in the context of the relevant sentencing case law to mitigate any sentence.
If you have been charged, regardless if you are pleading guilty or not guilty, you must consider the following with a lawyer;
- Did you knowingly possess child abuse material?
- Did anyone else have access to the computer where the child pornography was found?
- What is the nature of the material in question, does it meet the test?
- Was there a legal basis for you possessing the material?
- Did you accidentally download the material and delete it immediately, sometimes when police reconstruct a drive, they retrieve deleted materials and charge you on that basis.
- Has the material been collected for an artistic purpose
- What have you said on your record of interview?
- Who was in the image?
- Was the image taken of you, as a child? Was anyone else in the image?
- Does the image depict a criminal act in which you were the victim?
Answers to these questions could well mean that you can defend the charge or significantly mitigate any plea of guilty.
If the image features you as a child with another child or children is the child depicted is 16 or 17 years old and were you at the time not more than two years older and have the consent of the child depicted. These scenarios are important to discuss with your lawyer.
Other defences include situations where the child is you legal spouse or domestic partner, or you have an honest and reasonable belief that they are your legal spouse or domestic partner.
If you have been charged with possessing child abuse material or as it is commonly known child pornography, you should call our office today. Dribbin & Brown Criminal Lawyers specialise in sex offences, we have handled thousands of child pornography cases. If you have been charged you should call us today.
The Offence
Section 51G of the Crimes Act 1958
The prosecution must prove:
- The defendant knowingly possessed child abuse material.
The Maximum Penalty
Level 5 imprisonment being a maximum of 10 years.
Where Will My Case Be Heard?
Possession of child abuse material cases can only be heard in the County Court or Supreme Court of Victoria.
Questions to Consider:
Do you have a defence in relation to the available defences and exceptions mentioned above? Did you possess child abuse material?
If you are planning to plead guilty, what can you do to try to minimise your sentence?
What to do Next?
The most important thing for you to do first is to get hold of a lawyer. You want an experienced criminal defence lawyer who can help you sort out what if any exeptions and defences are relevant to your particular circumstances.
If you have been charged with possession of child abuse material, you should make an appointment to speak to one of our specialist criminal defence lawyers 03 8644 7320
The Legislation
Section 51G Possession of child abuse material
(1) A person (A) commits an offence if A knowingly possesses child abuse material.
(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).
(3) For the purposes of subsection (1), A possesses child abuse material that is electronic material if A controls access to the material whether or not A has physical possession of the electronic material.
(4) It is immaterial that the electronic material was outside Victoria, so long as A was in Victoria at the time at which some or all of the conduct constituting an offence against subsection (1) occurred.
(5) It is immaterial that A was outside Victoria at the time at which some or all of the conduct constituting an offence against subsection (1) occurred, so long as the electronic material was in Victoria.
Examples
1 A has an online storage account for electronic material accessible with a username and password. A has control of what is stored in the account and can move material around within the account or delete material from the account. A has an electronic folder in the account that A has titled ‘personal’ in which A puts some electronic child abuse material. A knowingly has possession of child abuse material.
2 In an online chat A is given a password for a joint email account that is shared with multiple users that A doesn’t know. A logs into the email account and views emails that contain child abuse material images. While logged in A has the ability to view, move or delete emails that contain child abuse material. A continues to access the email account to view images. A knowingly has possession of child abuse material.
Notes
1 Exceptions apply to this offence—see sections 51J, 51K and 51M.
2 Defences apply to this offence—see sections 51L, 51N, 51O, 51P, 51Q, 51R and 51T.
3 A mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as offensive is not a defence to this offence—see section 51U.
