The Penalties for the Production of Child Pornography in Australia

 

A 37-year-old Sydney man has appeared at the Blacktown Local Court last week after facing numerous counts of child abuse material, including the production and possession of child abuse material.

Following an investigation by the NSW Joint Anti Child Exploitation Team, the 37-year-old Sydney man from Marayong was arrested after police executed a search warrant at his home allegedly revealing “material the man had produced with a child who is known to him”.

As a result, a child that is said to reside in the home has now been removed from a “harmful situation” said the Australian Federal Police.

The child is said to now be residing in the care of relatives following the 37-year-old man’s arrest.

The Australian Federal Police have said that this is “among the worst we have seen in investigating this crime type.”

The efforts of everyone today have also helped us remove a child from harm, whose ongoing welfare will remain a high priority.”

Amongst the items seized by police included numerous electronic devices.

It’s reported that the arrests followed after a tip-off in respect to 2 Aussies who are said to have allegedly purchased child abuse material online.

 

Child Pornography

The meaning of ‘child pornography’ is reflected in section 473.1 Criminal Code 1995 (Clth).

Child pornography is material that depicts someone or a representation of someone who appears to be under 18-years-of-age who is engaging or appears to be engaging in a sexual pose or activity in such as manner that a reasonable person will consider it as offensive in all the circumstances.

Child pornography also encompasses a variety of material, including:

  1. Material that has a dominant characteristic depicting one or more of the following for a sexual purpose:
    • If it depicts a sexual organ or anal region of a person who appears to be under 18-years-of-age; or
    • If it depicts a representation of a sexual organ or anal region in a manner that a reasonable person will consider offensive in the circumstances; or
    • If it depicts the breasts of a female who at least appears to be under 18-years-of-age in a manner that a reasonable person will regard it as offensive in the circumstances.
  1. Material explaining a person who is or implied to be under 18-years-of-age involved in any of the following in a manner that a reasonable person will regard as offensive in the circumstances:
    • Engage in a sexual activity or pose; or
    • Is in the presence of a person who’s engaged in a sexual activity or pose.
  1. Material explaining any one or more of the following in a manner that a reasonable person will regard as offensive in the circumstances:
    • An anal region or sexual organ of a person who is implied to be under the age of 18-years; or
    • A female’s breasts implied to be under 18-years-of-age.

 

Child Abuse Material

The meaning of ‘child abuse material’ is also reflected in section 473.1 Criminal Code 1995 (Clth).

It includes material that shows a person or a representation of a person who appears under 18-years-of-age, and who appears to be a victim of cruelty, torture or physical abuse in a manner that a reasonable person will consider as offensive in the circumstances.

It also includes material that expresses or explains a person who’s implied to be under 18-years-of-age, and who’s implied to be a victim of torture, cruelty or physical abuse in a way that a reasonable person will consider as offensive in the circumstances.

The Penalties for the Production of Child Pornography in Australia

Section 474.20 and 474.23 of the Criminal Code 1995 (Clth) outlines the law and penalties for either possessing or producing child pornography or child abuse material.

The maximum sentence is 15-years imprisonment for anyone who either produces or possesses child pornography or child abuse material with the intention that it be used to access it, publish it, distribute it, advertise it, solicit it, or transmit it with a carriage service.

 

Carriage Service

The meaning of a ‘carriage service’ is reflected in section 7 of the Telecommunications Act 1997 (Clth).

It is a service for carrying communication by way of either guided and/or unguided electromagnetic energy. Examples includes a mobile phone or computer.

 

Defences to Producing Child Pornography Material Charges

A court will find you ‘not guilty’ if any one or more of the following defences apply:

  1. You did it for a public benefit i.e. where it’s necessary to assist law enforcement; or
  2. You did it in the execution of your job as a law enforcement officer, security officer or intelligence officer; or
  3. You did it while engaging in conduct in good faith to assist the eSafety Commissioner in detecting prohibited content; or
  4. You did it while involved in conduct in good faith to manufacture or develop or update content filtering technology.

Don’t hesitate to contact our Criminal lawyers from Sydney, Parramatta and Penrith to discuss this topic further if you have further questions!

Our lawyers specialise in criminal law and appear across all courts in Australia.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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