A 41-year-old Perth Man arrested by Australian Border Force last October, for having 64 images and 33 videos of child abuse material on two of his mobile phones.

The Perth man was sentenced to 10 months imprisonment with 4 months non-parole period. He was further fined $1,500 for possession of six videos classified as objectionable material.

Possession of Child Abuse Materials in NSW

Possession of Child Abuse Material is an offence in NSW under s91H(2) of the Crimes Act 1990 (NSW):

“(2) A person who produces, disseminates or possesses child abuse material is guilty of an offence.”

This offence also includes the production and dissemination of child abuse materials.

For the prosecution to be successful in proving this offence, they must prove the following elements beyond a reasonable doubt:

1. A person

Under s4 of the Crimes Act, a person is defined as an individual, society, company, or corporation.

2. Produces

“Produces” is defined under s91H(1) as creating film, photograph, print, alter/manipulate images or enter into an arrangement or agreement with a to produce material. For example, an adult arranging to take sexualised pictures of a child with the child would also fall under production of child abuse materials.

3. Disseminates

“Dissemination” is defined under s91H(1) as sending, supplying, exhibiting, transmitting , communicating, make available or enter into an arrangement to share the material. An example of dissemination is where a person had sent the picture to a friend or if he uploaded the image online.

4. Possesses

“Possesses” is defined under s91H(1) as “being in possession or control of the data”. This includes having control over the computer or storage device that has the materials saved in it, regardless of the computer or storage device being carried by another person (s308F Crimes Act 1990).

“Possession” can also include having the property in his/her custody or knowingly having that property in another place or person’s custody. For example, the computer may still consider by the court as being in the possession of the person regardless of the computer being placed in an abandoned warehouse.

5. Child abuse materials

“ Child Abuse Materials” is broadly defined in s91FB as a reasonable person would regard the material as being offensive in all circumstances since:

• The person appears to be, is implied to be or is apparently a child engaged in a sexual pose or activity with or without another person; or
• The person appears to be, is implied to be or is apparently a child as a victim of torture, cruelty, or physical abuse; or
• The private parts of a person who is or appears to be or is implied to be a child.

This broad definition not only captures photographic and video material, but it can also include online conversations. In R v Marsh [2020] NSWDC 72, the defendant was found with multiple online conversations on his laptop using the application “Kik”. In the course of these conversations, the defendant chatted with a person claiming to be a 14-year-old boy. Both parties exchanged sexual photographs and texts detailing sexual acts. The court found that the conversations amounted to child abuse material and the defendant’s act of sending the messages constituted dissemination.

Penalty

The maximum penalty for the offence of producing, disseminating, or possessing child abuse materials is 10 years imprisonment. Nevertheless, the length of imprisonment may change due to the nature and severity of the child abuse materials.

Defences

There are a few defences available under the Crimes Act for this offence. These include:

• Innocent production, dissemination, or possession

If a defendant did not know and could not have reasonably be expected to have known, that they could have produced, disseminated, or possessed child abuse material, this defence is available.

• A person producing, disseminating, or possessing depictions of themselves

It is also a defence if the defendant is the only person depicted in the child abuse material. However, this defence can only be used if the production/dissemination of the material occurred when the defendant was under 18 years old.

• Public benefit

If a defendant engaged in conduct that was of public benefit and did not extend beyond what was of public benefit, it is also a defence. Conduct will be considered as public benefit if the conduct is necessary to assist in either one of the following:

• Enforcing or administering a law
• Monitoring compliance with, or investigating a contravention of a law
• The administration of justice

• Law enforcement officers

If a person was a law enforcement officer acting in the course of their duties at the time of the offence, this can be used as a defence. The Crimes Act also specifies that the conduct of the defendant must have been reasonable in the circumstances for the purpose of performing their duty.

• Approved research

It is also a defence if the defendant engaged in conduct that was necessary for or of assistance in conducting scientific, medical, or educational research. The research would need to have been approved by the Attorney General in writing.

If you have been arrested or the police are looking to interview you regarding an investigation, Pannu Lawyers is able to advise you of your rights at every step of the criminal investigation & trial process. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. If your matter is at Blacktown Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.

The above information is intended as general information and is not intended to be relied on as legal advice.