Law, Penalties & Defences for Possessing Child Pornography

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He is amongst New Zealand’s richest, not to mention one of the most well-known and respected amongst businessmen, Sir Rob Brierley who is reported to have been approached and arrested by police at the Sydney International airport before being charged with allegedly possessing child pornography.

Considered an elite businessman, the 82-year-old man started R A Brierley Investments which ended up being NZ’s biggest listed company-albeit it crashed in 1987. Thereafter, he was involved in company boards in NZ, United Kingdom and Australia.

During his visits to Sydney, he stays in Australia’s expensive area, Wolseley Rd, in Point Piper’s.

NSW Police have been investigating the area for child abuse material.

Before Brierley was taken to Mascot Police Station and charged with 6 charges of possession of child abuse material on Tuesday 18 December last year, Australian Border Force (ABF) officers stopped him at the airport when he was attempting to board a flight to Fiji.

The police have said, “The man’s carry-on luggage was searched before the contents of his laptop and electronic storage devices were reviewed, which are alleged to have contained large amounts of child abuse material”.

Brierley was knighted in 1988 and had retired from working as a businessman in June last year.

He has since been granted bail and is due to appear again on 10 February at the Downing Centre Local Court.

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Law, Penalties & Defences for Possessing Child Pornography

Law, Penalties & Defences for Possessing Child Pornography

This blog will outline the law on possessing child abuse material or child pornography in NSW under the Crimes Act 1900 (NSW).

There are also heavy penalties for this under the Commonwealth Criminal Code Act 1995 (Cth) which is outlined in our previous blog on the penalties for possessing child abuse material in Australia under the Commonwealth Criminal Code.

There are heavy penalties in NSW for possessing child pornography (also known as child abuse material), according to section 91H(2) Crimes Act 1900 (NSW).

The penalty for committing this crime in NSW is up to 10-years jail.

While the courts don’t normally impose the maximum penalty of 10-years imprisonment, the courts do take this offence very seriously to reflect, amongst other things, the harm and ongoing harm suffered by the victims depicted in the images.

Possess child abuse material includes, in relation to material in the form of data, being in possession or control of data.

The same maximum penalties apply for disseminating or producing child abuse material in NSW under the same section.

Produce child abuse material includes, film, photograph, print or make such material; or alter or manipulate an image for purposes of making such material; or enter into an agreement to do the same.

To disseminate this material, includes to send, supply, exhibit, transmit or communicate it to someone else; or to make it available to access by other(s); or to enter into an agreement to do this.

What is ‘child abuse material’? section 91FB(1) Crimes Act 1900 (NSW) defines this as material that describes or depicts any of the following in a way that a reasonable person would consider in all the circumstances as offensive:

A person who is, appears to be or is implied to be, a child as a. victim of torture, physical abuse or cruelty; or
A person who is, appears to be, or implied to be a child engaged in or apparently engaged in a sexual pose or sexual activity; or
A person who is, appears to be or is implied to be a child in the presence of another who’s engaged or apparently engaged in a sexual pose or sexual activity; or
The private part of someone who is, appears to be or is implied to be a child.

The court will then determine whether a reasonable person would consider the material as in all the circumstances offensive by considering:

Standards of morality, decency and propriety generally accepted by reasonable adults; and
Any artistic, educational or literary merit of the material in question; and
Whether the material has journalistic merit, for record or report of a matter of public interest; and
The materials general character- whether it is for medical, legal or scientific character.

The Defences to possessing child abuse material is outlined in section 91HA Crimes Act 1900 (NSW), and includes any one of the following:

If the child abuse material depicts only the alleged offender.
If the possessing was engaged because it was necessary for or of assistance in conducting scientific, medical or educational research approved by the Attorney General in writing.
The alleged offender was a law enforcement officer acting in the course of duty and such conduct was reasonable in the circumstances for that purpose.
Where the alleged offender conduct was for public benefit and didn’t extend beyond such public benefit i.e. enforcing or administering a law, monitoring compliance with or investigating a contravention of a law or administration of justice.
Where the material came into the alleged offender’s possession unsolicited and as soon as he/she became aware of it, he/she took reasonable steps to get rid of it.
If the alleged offender didn’t know and couldn’t reasonably be expected to have known that he/she had possession of the material.

For more information on this, speak to one of our specialist criminal lawyers from Parramatta or Sydney CBD- we offer a free consultation and are available 24/7.

Published on 05/01/2020