Section 471.22 Criminal Code Act 1995
Aggravated Child Pornography Offences

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Child abuse material by a postal or similar service – aggravated offence is a crime under section 471.22 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 30 years in prison.

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

  1. You committed an offence under section 471.19 or 471.20 of the Criminal Code Act
  2. You did so on 3 ore more separate occasions, and
  3. Each such offence involved 2 or more people.

Section 471.19 contains the offences of:

  1. Using a postal or similar service for child abuse material, and
  2. Requesting another to cause child abuse material to be carried by a postal or similar service.

Section 471.20 contains the offence of possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service.

‘Child abuse material’ is that which depicts a person, or a representation of a person, who is, or appears to be, in a way that reasonable persons would regard as offensive:

  1. Under 18 years of age, and
  2. A victim of torture, cruelty or physical abuse.

Or:

Material that describes a person who is, or is implied to be, in a way that reasonable persons would regard as offensive:

  1. Under 18 years of age, and
  2. A victim of torture, cruelty or physical abuse.

Or:

Material that depicts a person, or a representation of a person who is, or appears to be, in a way that reasonable persons would regard as offensive:

  1. Under 18 years of age, and
  2. Engaged in, or appearing to be engaged in, a sexual pose or sexual activity, whether or not in the presence of other persons, or in the presence of a person engaged in, or appearing to be engaged in, a sexual pose or sexual activity.

Or:

Material whose dominant characteristic is the depiction, for a sexual purpose, in a way that reasonable persons would regard as offensive:

  1. A sexual organ or anal region of a person who is, or appears to be, under 18 years of age, or a representation of such a sexual organ anal region, or
  2. The breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age.

Or:

Material that describes in a way that reasonable persons would regard as offensive.

A person who is, or is implied to be, under 18 years of age and who is:

  1. Engaged in, or implied to be engaged in, a sexual pose or sexual activity, whether or not in the presence of other persons, or
  2. In the presence of a person engaged in, or implied to be engaged in, a sexual pose or sexual activity.

Or:

Material that describes in a way that reasonable persons would regard as offensive.

  1. A sexual organ or anal region of a person who is, or is implied to be, under 18 years of age, or
  2. The breasts of a female person who is, or is implied to be, under 18 years of age.

Or:

Material that is a doll or other object intended to be used to simulate sexual intercourse that resembles:

  1. A person who is, or appears to be, under 18 years of age, or
  2. Part of the body of such a person.

You are not guilty of an offence under section 471.19 or 471.20 if you are able to establish ‘on the balance of probabilities’ that your conduct:

  1. Was of public interest, and
  2. Did not extend beyond that interest.

Your conduct was of public interest if, and only if, it was necessary for or of assistance in:

  1. Enforcing a law of the Commonwealth, a State or a Territory
  2. Monitoring compliance with, or investigating a contravention of, such a law
  3. The administration of justice, or
  4. Conducting scientific, medical or educational research approved in writing by the AFP Minister.

Your motives are irrelevant for determining whether your conduct was of public interest.

You are not criminally responsible for an offence under section 471.19 or 471.20 if:

  1. You were, at the time, a law enforcement officer, or an intelligence or security officer, acting in the course of your duties, and
  2. Your conduct was reasonable in the circumstances for the purpose of performing your duties for the purpose of establishing the aggravated offence under section 471.22.

It is immaterial whether each underlying offence under section 471.19 or 471.20, or the conduct constituting each such offence,  was the same on each occasion.

You cannot be convicted of an underlying offence if you have been convicted or acquitted of an offence under section 471.22 in relation to the same conduct. However, a court can find you not guilty of an offence under section 471.22 but guilty of an underlying offence under section 471.19 or 471.20 during the same court proceedings.

Duress and necessity are defences to child abuse material charges.

If you require Expert Legal Advice from an Experienced Criminal Defence Lawyer for your Aggravated Child Pornography Offences matter, call Sydney Criminal Lawyers® today on (02) 9261 8881.

The Legislation

471.22 Aggravated offence—offence involving conduct on 3 or more occasions and 2 or more people

(1) A person commits an offence against this section if:
(a) the person commits an offence against one or more of the following provisions on 3 or more separate occasions:
(i) section 471.16 (using a postal or similar service for child pornography material);
(ii) section 471.17 (possessing etc. child pornography material for use through a postal or similar service);
(iii) section 471.19 (using a postal or similar service for child abuse material);
(iv) section 471.20 (possessing etc. child abuse material for use through a postal or similar service); and
(b) the commission of each such offence involves 2 or more people.

Penalty: Imprisonment for 25 years.

(2) There is no fault element for any of the physical elements described in paragraph (1)(a) other than the fault elements (however described), if any, for the offence against section 471.16, 471.17, 471.19 or 471.20.

(3) To avoid doubt, a person does not commit an offence against section 471.16, 471.17, 471.19 or 471.20 for the purposes of paragraph (1)(a) if the person has a defence to that offence.

Offence or conduct need not be the same

(4) For the purposes of subsection (1), it is immaterial whether the offence, or the conduct constituting the offence, is the same on each occasion.

Double jeopardy etc.

(5) A person who has been convicted or acquitted of an offence (the aggravated offence) against this section may not be convicted of an offence against section 471.16, 471.17, 471.19 or 471.20 in relation to the conduct that constituted the aggravated offence.

(6) Subsection (5) does not prevent an alternative verdict under section 471.23.

(7) A person who has been convicted or acquitted of an offence (the underlying offence) against section 471.16, 471.17, 471.19 or 471.20 may not be convicted of an offence against this section in relation to the conduct that constituted the underlying offence.

Why Choose Sydney Criminal Lawyers®?

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional Results

    Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

    Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

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    We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client Satisfaction

    We have the best and most comprehensive client review record of any law firm in Australia.

    Regular communication, accessibility and quality service are our team’s highest priorities.

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    We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

  3. Australia’s Most Awarded Criminal Law Firm

    We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

    The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

  4. Fixed Fees

    We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

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    Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.

  5. Free First Appointment

    For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

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  6. Specialist Lawyer Guarantee

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  7. All NSW Courts

    From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

    And we offer fixed fees for most criminal and traffic law cases throughout the state.

  8. Accredited Specialists

    Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

    All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

    An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

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    Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.

  9. Results-Focused Law Firm

    Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

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  10. Team of Lawyers Behind You

    Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.

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  11. Familiar with Magistrates and Judges

    Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.

    Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.

  12. Convenience

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    We offer free parking at our Sydney CBD offices, and all of our offices are close to train stations and bus terminals.

    For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.

    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

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