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Child Abuse Material by a Postal or Similar Service – Aggravated Offence

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.

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