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Incidentally coming across child abuse material (“child pornography”) online can be an incredibly confronting and distressing experience. Related to that distress may be concerns of being charged with an offence.

Here’s what you need to know.

Child Pornography Offences Applicable in NSW

Possessing and accessing child pornography is criminalised at both a State and Federal level.

Section 91H of the Crimes Act 1900 (NSW) outlines the offence of producing, disseminating or possessing child abuse material. This offence carries a maximum penalty of 10 years imprisonment.

“Child abuse material” under the Act means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:

  • a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
  • 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), or
  • 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.

Under s 474.22 of the Criminal Code Act 1995 (Cth) it is a Federal offence to use a carriage service (such as the internet) to:

  • Access child abuse material;
  • Cause child abuse material to be transmitted;
  • Transmit, make available, publish, distribute, advertises or promote child abuse material; or
  • Solicit child abuse material.

It is a further offence under s474.22A of the Code to possess or control child abuse material via a carriage service.

Each of these Federal offences carries a maximum penalty of 15 years imprisonment.

 

What If Possession Is Accidental?

For possession offences under the Crimes Act 1900 (NSW) a number of defences could apply under s91HA in cases of accidental possession, including:

  • Innocent production, dissemination or possession: It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material.
  • Unsolicited possession: It is a defence in proceedings for an offence against section 91H not involving the production or dissemination of child abuse material that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its nature, took reasonable steps to get rid of it.

However, for Federal possession and access offences under Criminal Code Act 1995 (Cth) absolute liability applies. This means that you can be charged with these offences, whether or not access or possession of the material was intentional or deliberate.

 

Other Defences

Further defences are available for child pornography offense at both a State and Federal level, including:

  • The conduct engaged in by the defendant was necessary for scientific, medical or educational research approved, authorised or otherwise permitted under a law of the State or of another State, a Territory or the Commonwealth.
  • The conduct was otherwise engaged for the “public benefit” including for purpose of enforcing, administering or monitoring compliance with the law or the administration of justice.
  • The material possessed depicted only the defendant.

Under the Crimes Act 1900 (NSW), an offence will also not apply if the material is not “offensive” to a reasonable person, which can take 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.

 

By Jarryd Bartle.

Published on 26/06/2023

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