A Guide on the Penalties for Producing Child Pornography in NSW

It’s reported that enforcement authorities have discovered a studio containing cameras, lighting and editing equipment alleged to be used to produce child pornography of girls aged as low as 8.

While some of the girls involved are provided with counselling, ECPAT-USA who is the head of anti-trafficking group state that the efficiency in which the global networks could operate create an “invisible crisis”.

Carol Smolenski says, “International networks are taking advantage of vulnerable families, using young people, taking pictures of their sexual abuse and sharing or selling the images around the works.”

She further says, “Since the creation of digital camera and the internet, a problem that was small and controllable has exploded… It is an invisible crisis that every government and every citizen must start to grapple with.”

Georgia Police have so far arrested and charged 11 people allegedly involved.

It’s been a joint operation involving US, Europol and Australian law enforcement authorities described as the largest joint operation of its kind in the former soviet republic.

Those that were arrested, it is reported included parents of some of the girls involved who were allegedly remunerated about 500 to 3000 lari (which works out to be about $170 to $1,000) for the photographs they would take of their own kids.

Amongst those arrested included an Australian and an American.

Australian Federal Police, Wendy Rix said, “the disruption of this syndicate will have a significant effect on the production and distribution of child exploitation material both in Georgia and internationally”.

While in Georgia, these offences carry up to life imprisonment, Australia also have harsh penalties.

As criminal lawyers appearing across Sydney Courts and beyond, we are specialists in criminal law.

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A Guide on the Penalties for Producing Child Pornography in NSW

It’s a serious crime nation-wide to use a carriage service for child pornography material carrying up to 15-years prison under section 474.19 Criminal Code Act 1995 (Cth).

A person will be guilty of this crime if he/she accesses, causes to be transmitted to himself or herself, transmits, makes available, publishes, distributes, advertises, promotes, or solicits material using a carriage service if that material is ‘child pornography material’.

It is a defence to this if the alleged offender wasn’t aware and also didn’t realise the possibility that the material is ‘child pornography material’ at the time of the access, transmission, soliciting, publishing, distribution or promotion.

It’s also a serious crime in Australia to produce, supply, obtain, possess or control material that is ‘child pornography material’ for use through a carriage service under section 474.20 Criminal Code Act 1995 (Cth).

A person will be guilty of this if he/she produces, possesses, controls, supplies or obtains material that is considered to be ‘child pornography material’ using a carriage service if he/she intends to use it or intends for it to be used by another person.

It is not, under the law, an offence to attempt to commit this offence in Australia.

Circumstances where a defence to a charge of producing child pornography, include:

• Where the conduct is committed while he/she engages in committing it in good faith for purposes of assisting the eSafety Commissioner to detect prohibited (or potential prohibited) content whilst performing that function; or
• Where the conduct is committed while he/she engages in the conduct in good faith in order to manufacture or develop or update content filtering technology; or
• Where the conduct is committed while he/she is in the court of duties as a law enforcement officer, security officer or intelligence officer provided it is reasonable in the circumstance for purposes of performing his/her duty; or
• Where the offending conduct is done in the public benefit. For example, where it’s necessary to assist in enforcing a Commonwealth or state law or monitoring compliance with the law.
• Where the offending conduct is done in the public benefit for conducting scientific, medical or educational research approved by the Australian Federal Police Minister in writing.

‘Child pornography material’ here includes the following:

• Material that describes a sexual organ or anal region of a person in a way that implies that person is under 18-years-of-age, or implies the breasts of a female who is implied to be under 18 in a way that a reasonable person would determine as offensive in all the circumstances; or
• Material that described another person who is or is implied to be under 18 years of age engaging in sexual pose(s) or sexual activity or is in the presence of another person who is engaged in such a pose or activity; or
• Material that has as its dominating characteristic as depicting, for a sexual purpose a sexual organ, anal region of someone who appears to be under 18-years-of-age, representation of such an organ or region, or the breasts of a female who appears to be under 18 in a way or manner that a reasonable person would regard as offensive in all the circumstances; or
• Material depicting someone or representation of someone who appears to be under 18 years of age engaging or appears to be engaging in a sexual pose or activity, or who is in the presence of another person engaging in or appearing to engage in a sexual pose or activity in a way or manner that a reasonable person would regard as offensive in all the circumstances.

The above is defined in section 473.1 Criminal Code 1995 (Cth).

‘Carriage service’ is the carrying of communication via unguided and/or guided electromagnetic energy, such as internet and computers (section 7 Telecommunications Act 1997 (Cth)).

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