Possessing Child Abuse Material Penalties in NSW

By Sahar Adatia and Jimmy Singh.

The problem of child sexual abuse material circulating between networks and spreading over social media has in recent years become both ever-increasing and worrying.

As The Sydney Morning Herald reports, last year, almost a million Twitter accounts were suspending for posting child sexual exploitation, while Facebook and Instagram said they removed 21 million child nudity and exploitation posts in the nine months between July 2018 and March 2019.

Additionally, YouTube reported taking down 1.9 million videos due to “child safety” issues between September 2018 and March 2019.

In fact, so vast is the problem that the Australian Federal Police deal with approximately 1000 reports of child abuse material each month.

More and more, the Australian Federal Police Assessment Centre receives reports of children aged as young as four producing sexually explicit material and uploading this material to social media platforms.

This week, the seriousness of this troubling social issue surfaced once more after a teacher at Sydney’s Knox Grammar school was charged over child abuse material.

It is reported the teacher of the expensive private school on Sydney’s north shore was charged after his mobile phone was allegedly found at the school’s aquatic centre.

School Teacher Allegedly Found with “Large Number of Child Abuse Images” on Mobile Phone

On 5 August 2019, Nick Warby, the director of aquatic sports at Knox Grammar School, was arrested after “a large number of child abuse images” were allegedly found on his mobile phone, which was left at the school’s swimming pool in Wahroonga.

The 30-year-old teacher was arrested and taken to Hornsby police station.

NSW police officers then searched the man’s home, in which a number of electronic devices were seized for further examination.

Police also allege substances, believed to be ice and GHB, were also found after the teacher’s car was searched.

Mr Warby was charged with possessing child abuse material and prohibited drugs offences.

He was refused bail and is due to next appear at the Hornsby Local Court on 27 August 2019.

Knox Grammar Headmaster Issues Letter to Parents Informing Teacher Removed from Duties

In a letter sent out to parents of the private school, Knox Grammar headmaster Scott James advised the teacher had been removed from his duties at the aquatic centre.

“A colleague discovered inappropriate internet images on a mobile phone which we believe belongs to the staff member,” Mr James wrote.

He also informed parents that there is no suggestion of the images relating to Knox boys or students of the swimming centre.

“Police were alerted. They have advised us that there is currently no suggestion the images relate to Knox boys or swim centre students,” Mr James notified.

“Knox Grammar School is now recognised at the gold standard for protection of those in our care and we will not hesitate to contact police and remove staff who fail to follow our Code of Conduct and the law.”

According to Mr Warby’s LinkedIn profile, he has been teaching at the school since January 2017. He describes himself as a “friendly and enthusiastic educator with a passion for promoting sport and physical activity amongst young people”.

Prior to this, he was a primary school teacher.

He is also a surf life saver.

A Guide on the Law on Possessing Child Abuse Material in Australia

Anyone guilty of child abuse material in Australia will face a maximum penalty of 15-years prison sentence if he/she possesses, supplies, procures or obtains child abuse material with the intention that it be used by him or her or with the intention that it be used by another person (section 474.23 Criminal Code 1995 (Cth)).

It’s a crime in Australia to produce or possess any material that shows a person who is or appears to be (or is represented to be) under 18-years of age if that person is depicted to appear to be subject to torture, cruelty, or physical abuse in any way that a reasonable person will consider to be offensive in the circumstances.

The definition of ‘child abuse material’ is expressed in section 473.1 Criminal Code 1995 (Cth).

The definition of ‘child abuse material’ also includes material that describes a person who is implied to be under 18-years, if the material also implies the victim to be a victim to torture, cruelty or physical abuse where it is done in a way that a reasonable person would regard as being offensive in all the circumstances.

Anyone guilty of child pornography material will face the same maximum penalty of 15-years imprisonment in Australis if he/she possesses, produces, supplies or obtained child pornography material if he/she does this with the intention that the material be used by him/her or by another person. (section 474.20 Criminal Code 1995 (Cth)).

In contrast to ‘child abuse material’, ‘child pornography material’ is defined in section 473.1 Criminal Code 1995 (Cth) as material that depicts or represents a person who either is or appears to be under 18-years of age who:

• Is engaged in (or appears to be engaged in) a sexual pose or sexual activity; or
• Is in the presence of another person who is engaging in (or appears to be engaging in) such activity or pose; and
• Where either of the above two points apply, a reasonable person would regard it as offensive in all the circumstances.

‘Child pornography material’ is also considered to be material which has as its dominant characteristic the depiction of any of the below for a sexual purpose that a reasonable person would regard as being offensive in all the circumstances:

• A sexual organ or anal region of a person who is or appears to be under the age of 18 (or the representation of the same); or
• The breasts (or representation of the breasts) of a female who is or appears to be under the age of 18.

In addition, ‘child pornography material’ also includes material that describes a person who is or is implied to be under the age of 18 where any one of the below apply in a way that a reasonable person would regard as being offensive in all the circumstances:

• Where that person is engaged in or implied to be engaged in a sexual pose or activity; or
• Where that person is in the presence of a person who is engaged in or implied to be engaged in such activity.

It also includes any material that described a sexual organ or anal region of someone is either is or is implied to be under the age of 18, or material that described the breasts of a female who is or is implied to be under 18 years of age in such a way that a reasonable person would regards as offensive in all the circumstances.

‘Describe’ includes contain data from which text or sounds can be generated.

‘Material’ includes material in any form, or even a combination of forms capable of forming communication.

Some defences to ‘child abuse material’ and ‘child pornography material’ offences include:

• If the conduct is of public benefit and doesn’t extend beyond that; or
• You accidentally came across the material while searching the internet, but immediately made attempts to remove it from your device upon realising.
• The person is at the time a law enforcement officer or intelligence or security officer who is acting in the course of duties where the conduct is considered reasonable in the circumstances for the purposes of performing that duty; or
• The person was acting in good faith for the purpose of assisting the eSafety Commissioner to detect prohibited content or potential prohibited content in the performance of the Commissioner’s functions, or
• The person was acting in good faith for the purposes of manufacturing or developing or updating content filtering technology.

In determining whether a reasonable person would regard material as offensive in all the circumstances, the law provides assistance in section 473.4 Criminal Code 1995 (Cth).

To determine this, standards of morality, decency and propriety generally accepted by reasonable adults are considered.

The literary, artistic or educational merit if any of such material, in addition to the general character of the material, including whether it’s of a medical, legal or scientific character are also considered.

Click here for an outline on the penalties and law on using a carriage service for child pornography or child abuse material in NSW.

Have a question? Call our friendly criminal defence lawyers to arrange a free first consultation on 24/7 hotline (02) 8606 2218.

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