The Offence of Disseminating, Possessing or Producing Child Abuse Material

by Sonia Hickey & Ugur Nedim

Australian Federal police have arrested 44 men across the country, including eight from NSW who are alleged to belong to an international ring sharing child abuse material.

The AFP’s special unit, called the Australian Centre to Counter Child Exploitation (ACCCE), led the investigation, names ‘Operation Molto’. It also removed one child it considered to be in immediate harm in New South Wales, and rescued 16 others from potential abuse in other states.

Operation Molto

‘Operation Molto has been a collaborative effort between the AFP, Police services in each state and territory, and Fire and Emergency services staff.

The operation began in 2019, after a foreign intelligence agency reported to the AFP that thousands of people around the world were sharing child sexual abuse material on a cloud-based storage system.

Some of the men arrested in Australia are alleged to have shared material produced by notorious paedophile Peter Scully, who is currently serving life in prison in the Philippines after being found guilty of human trafficking and the sexual abuse of minors; others are accused of making their own material.

In NSW, eight men were charged with 49 offences. In Victoria, 11 men were charged with 105 offences. In Queensland, 11 men were charged with 114 offences, and in South Australia nine men are now facing 67 charges. In Western Australia, two people were charged with seven offences.

The AFP is now pushing the Federal Government to increase police powers to access the dark web and other cyber platforms in order to move more quickly and efficiently, saying that identifying victims is a race against time.

Child exploitation is on the rise

Around the world, the sexual abuse and exploitation of children is becoming more prevalent, but in Australia, statistics suggest that the demand for child sex material is skyrocketing.

The AFP reports that earlier this year, at the beginning of COVID-19 lockdowns (between February and April 2020) it witnessed traffic to dark websites offering child abuse material more than double from figures from the same period in 2019.

And in the past 12 months alone, the ACCCE has reported intercepting and examining more than 250,000 child abuse material files.

Viewing, distributing or producing child exploitation material is a crime punishable by up to 10 years in prison.

What is child abuse / child exploitation material?

In New South Wales, section 91FB of the Crimes Act 1900 (NSW) defines “child abuse material” as material that depicts or describes, in a way that reasonable person would regard as being, in all the circumstances, offensive, such as:

  • A person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse
  • A person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons)
  • A person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
  • The private parts of a person who is, appears to be or is implied to be, a child.

In determining whether reasonable persons would regard particular material as being, in all the circumstances, offensive, the following factors are taken into account:

  • The standards of morality, decency and propriety generally accepted by reasonable adults
  • The literary, artistic or educational merit (if any) of the material, and
  • The journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest
  • The general character of the material (including whether it is of a medical, legal or scientific character)

Private parts are  a person’s genital area or anal area, or the breasts of a female person.

Under the definition, a ‘child’ is a person under the age of 16 years.

The offence of disseminating, possessing or producing child abuse material

Disseminating, possessing or producing child abuse material is an offence under section 91H of the Crimes Act 1900 (NSW) 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 charges cover: Filming, photographing, printing or otherwise making child abuse material, or altering or manipulating any image for the purpose of making child abuse material, or initiating or entering into any agreement or arrangement to do so.

Defences to child abuse material offences

Defences to the charge of disseminating, possessing or producing child abuse material include that:

  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, or
  5. The material depicts you and would not be child abuse material in the absence of your image.

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

Legal exception

A legal exception to child abuse material charges is that:

  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.

Accused of a child abuse material offence?

If you have been accused of sharing, having or making child abuse material, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free conference with an experienced criminal defence lawyer who will advise you of your options and the best way forward.

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.

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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