Child Pornography Offences in New South Wales

by Sonia Hickey & Ugur Nedim
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More than 100 Australians have been arrested and charged with child-pornography related offences. 

The arrests were made as part of an international investigation that has been ongoing since 2019, following information that people were sharing child abuse material in a cloud platform. 

At least 117 Australians aged between 18 and 61 years old have been arrested – 58 in Queensland, 18 in Victoria, 17 in New South Wales, 12 in South Australia, eight in Western Australia, three in Tasmania, three in the ACT and two in the Northern Territory.

They face a total of 1,248 criminal charges. 

Since 2019, 153 children have been removed from harm – 51 of them in Australia. 

Possessing, producing, or sharing child-abuse related material

Possessing, Disseminating or Producing Child Abuse Material is an offence under section 91H of the Crimes Act 1900 which carries a maximum penalty of 10 years in prison.

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

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

‘Possession’ includes physical custody or control of material or data.

‘Dissemination’ includes:

  1. Sending, supplying, exhibiting, transmitting or communicating to another,
  2. Making available for access by another, and
  3. Entering an agreement or arrangement to do so.

‘Production’ includes:

  1. Filming, photographing, printing or otherwise making,
  2. Altering or manipulating, and
  3. Entering an agreement or arrangement to do so.

‘Child abuse material’ is that which depicts or describes in a way that reasonable persons would regard as being offensive:

  1. The private parts of a person who is, or appears to be or is implied to be, a child, or
  2. A person who is, or appears to be or is implied to be, a child:

As a victim of torture, cruelty or physical abuse, or engaged in or apparently engaged in a sexual pose or sexual activity, or in the presence of another who is engaged in or apparently engaged in a sexual pose or sexual activity.

In determining whether material is offensive to a reasonable person, the following matters must be taken into account:

  • The standards of morality, decency and propriety accepted by reasonable adults,
  • The literary, artistic or educational merit (if any) of the material,
  • The journalistic merit (if any) of the material, and/or
  • The general character of the material.

‘Private parts’ is defined as:

The genital or anal area, whether bare or covered by underwear, or the breasts of a female, or transgender or intersex person identifying as female whether or not the breasts are developed.

For the purposes of the offence, a ‘child’ is a person under the age of 16 years.

Defences to the charge include where:

  1. You did not know, and could not reasonable have known, that you possessed, disseminated or produced it,
  2. Your conduct benefited the public through law enforcement or administration, or the administration of justice, and did not extend beyond it,
  3. The material received a classification for publication,
  4. The use of the material was approved by the Attorney-General for research, and
  5. The material depicts you and would not be child abuse material in the absence of your image.

An additional defence to possessing child abuse material is where you received it unsolicited and took reasonable steps to get rid of it upon becoming aware of its nature

An exception to the offence is where:

  1. The possession of the material occurred when you were under 18, and
  2. A reasonable person would consider the possession acceptable considering:
  • The nature and content of the material, 
  • The circumstances whereby you came to possess it,
  • The age, vulnerability and circumstances of the child depicted,
  • Your age, vulnerability and circumstances, and
  • The relationship between you and the child depicted.

“Capping” 

Last year, the Australian Federal Police issued warnings to parents and guardians that during the pandemic lockdowns, with us all spending more time online, children were at higher risk than ever before of falling victim to online predators. 

They also warned of a growing trend, with children as young as 8 years old being coerced into performing live-streamed sexual acts and a new type of offending called “capping”. 

Often children think they’re interacting with another child, and are unaware that the material is being captured. Once the material is captured (recorded or screen shot) it is then shared via child pornography consumers. 

Sometimes the predators then go further –  and sexually extort victims into producing even more graphic content.

Under Section 91P of the Crimes Act 1900 it is a criminal offence for a person to intentionally record an intimate image of another person without that other person’s consent, while knowing or being reckless to the fact that the other person did not consent. The penalty is  up to 3 years’ imprisonment and/or a fine of $11,000 

Section 91Q of the Crimes Act prescribes the same maximum penalty for anyone who intentionally distributes an intimate image of another person without that other person’s consent, while knowing or being reckless to the fact that the other person did not consent.

Child Grooming 

Child grooming is befriending and establishing an emotional connection with a child with the intention of forming a sexual relationship. People who want to groom children often befriend them online, establishing a bond.

Procuring a child for unlawful sexual activity is a criminal offence under section 66EB(2) of the Crimes Act 1900 which carries a maximum penalty of 12 years in prison or 15 years if the child was under the age of 14 years The charge can extend to adults who pretend to be children, to trick or coerce a child. 

The maximum penalty is 10 years in prison, or 12 years if the child was under 14 years of age.

It is also an offence to groom a parent, guardian or carer to gain access to a child, under section 66EC of the Crimes Act 1900, which carries a maximum penalty of 5 years in prison or 6 years if the child was under 14 years of age.

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Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Autumn 2021.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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