Possession Of Child Pornography – s 91H Crimes Act 1900
It is extremely important to speak to an experienced team of Sydney criminal defence lawyers (https://www.criminaldefencelawyers.com.au/about-us/lawyers/) to provide you realistic and practical advice on your best defence options, and most importantly, the best possible representation in court to get the best possible outcome.
In January 2009 this offence’s maximum punishment increased from 5 years to 10 years imprisonment. Although courts don’t normally give maximum punishments, they use the maximum as a yardstick or guidance as to how seriously they should take the offence.
Our team consists of an accredited specialist criminal lawyer with proven success in getting charges dropped early, and proving their clients’ innocence in court. The team at Criminal Defence Lawyers Australia (https://www.criminaldefencelawyers.com.au/about-us/) consist of highly respected and experienced leaders in the law on child pornography charges who will guide you every step of the way in your case.
Your Options in Court
PLEADING NOT GUILTY
Our team of Sydney’s leading criminal defence lawyers will not only provide you with all your realistic and practical options, they will focus on getting your charges dropped early and fight around the clock to prove your innocence in court.
To be guilty for possession of child pornography, the prosecution must first prove, beyond reasonable doubt, that you did the following:
- Produced, Disseminated (spread) or Possessed ‘child abuse material’
What is ‘child abuse material’?
Child abuse material is anything that shows or describes something that ‘reasonable people would consider offensive’ including:
- A person who appears to be a child as a victim of torture, cruelty or physical abuse, or
- A person who appears to be a child involved in a sexual pose or sexual activity, or
- A person who appears to be a child in the presence of another person who is engaged in a sexual pose or sexual activity, or
- The private parts of a person who appears to be a child which include the genital or anal area, or breasts of a female.
How to determine what a ‘reasonable person would consider offensive’?
To determine if a reasonable person would consider something offensive, the court will look at the following:
- The standards of morality and decency generally accepted by reasonable adults,
- The artistic or education relevance of the material,
- The journalistic relevance of the material for a record or report of public interest, and
- Whether the material is for medical, legal or scientific purposes
Defences to this charge
If charged with produce or disseminate child abuse material, you are NOT GUILTY to this charge if:
- You did not know, and could not reasonably be expected to have known, that you produced or spread the child abuse material.
- You produced or disseminated the material in certain circumstances, such as, you were reasonably acting for a genuine public benefit purpose including child protection, scientific, medical or legal purposes or law enforcement.
- Duress and necessity
If charged with possession of child abuse material, you are NOT GUILTY if:
- You did not know, and could not reasonably expected to have known, that you were in possession of the material.
- The material came into your possession without trying to obtain it, and you took reasonable steps to get rid of it as soon as you became aware of its pornographic nature.
- You came into possession of the material in circumstances you were reasonably acting for a genuine public benefit purpose such as child protection, scientific, medical, legal, or law enforcement.
- Duress and necessity
Before pleading guilty it is critical you obtain realistic and accurate advice on your options. Our team of sydney criminal lawyers are leading specialists in these charges who are able to give you the best possible guidance, advice and representation to get you the best possible outcome.
Receiving up to 25% discount of punishment
Pleading guilty in the Local Court at an early stage of your case can get you a discount of up to 25% off the punishment you would otherwise get from the court. For this reason, it is extremely important you receive accurate, realistic and timely advice from experienced leading industry experts.
Downgrade or drop charges
Our highly specialist defence lawyers have significant experience negotiating with police and the DPP to drop and downgrade to lesser serious charges at an early stage saving their clients thousands of dollars in legal fees.
An experienced criminal defence lawyer should be able to carefully analyse the evidence and point out all the holes in the evidence before beginning the negotiation phase with police to convince them to drop or downgrade charges. Our highly experienced accredited experts have achieved this on countless occasions.
Negotiate the facts on sentence
It is critical to negotiate the facts of your case to something more favourable to you before entering a plea of guilty to these types of charges. The Judge will punish you depending on what is written in the facts, not just the charge, that you plead guilty to. Our experts are Sydney’s leading criminal lawyers with years of experience in changing the facts to reflect a fair version of what occurred leading a more favourable outcome.
Good character references
A good character reference can assist to paint a good picture of the kind of person you really are, and the good things you have done.
Our Specialist Criminal Lawyers will guide you step by step with who to get references from, what format, the kind of content to be included and not to be included in each reference to ensure that it is perfect for handing up to the Judge.
Expert psychologist reports
A specialist report from an experienced highly respected psychologist or psychiatrist is highly recommended for the following compelling reasons:
- It is one of the best ways of telling your side of what happened thereby giving some kind of an explanation rather than a justification. Allowing the court to give you leniency.
- One of the best ways of expressing your sorry and insight in your conduct without having to give that evidence in the witness box in court on the day of your sentence. Entitles the Judge to further discount your punishment.
- Provides a further explanation of why you committed the offence for example, due to an underlying psychological mental condition or illness such as depression or Bi Polar disorder. Only an experienced expert psychiatrist or psychologist can express and diagnose you with a mental condition which provides very compelling reasons why the Judge should further reduce your punishment as a matter of law.
- It provides an expression of your prospects of being rehabilitated, and a treatment plan to demonstrate that you have a plan in place which you intend to follow with a support network. If this is found, the Judge will further reduce your punishment.
Our team have specially hand selected the industry leading and most highly respected psychologists and psychiatrists in Australia to address the above points for your case, maximising your chances at getting the best possible result.
It is important to receive realistic and practical advice, and although the production, dissemination or possession of child abuse material carried a maximum punishment of up to 10 years imprisonment, not everyone receives the maximum. The maximum is usually reserved for the most serious kind of conduct of this kind that comes before the courts.
There are all kinds of punishment available to a Judge to give to you, including the following from most serious to least serious:
- Section 10 Dismissal (https://www.criminaldefencelawyers.com.au/criminal-law/section-10-dismissal/)
- Conditional Release Order (https://www.criminaldefencelawyers.com.au/criminal-law/penalties/nsw/conditional-release-order/)
- Fine (https://www.criminaldefencelawyers.com.au/criminal-law/penalties/nsw/fine/)
- Community Correction Order (https://www.criminaldefencelawyers.com.au/criminal-law/penalties/nsw/community-correction-order/)
- Intensive Correction Order (https://www.criminaldefencelawyers.com.au/criminal-law/penalties/nsw/intensive-correction-order/)
- Full Time Imprisonment (https://www.criminaldefencelawyers.com.au/criminal-law/penalties/nsw/full-time-imprisonment/)
How does the Judge determine what punishment to give you?
When thinking of which punishment and how long the punishment should be, the Judge will consider all of the above factors. But in addition, they look at past cases that were similar to yours.
Our specialist lawyers are so highly experienced that they are able to pick out like cases through thorough legal research with up to date technology.
Sometimes, the higher courts hand down what is called a guideline on what other factors the Judge should look at in considering how objectively serious your particular offence was. The more objectively serious it is, the more the Judge will need to punish. The less objectively serious for this kind of offence it is, the less harsher the punishment is likely to be.
In the case of Minehan v R  NSWCCA 140 the court listed a number of factors the Judge should consider when making the assessment of how objectively serious any particular case is, these include:
- Whether actual children were used.
- The age and gravity of the sexual activity portrayed. This is concerned with the extent of the cruelty and harm discernible from the material.
- The impact on the child.
- Whether the children used were drawn from particular vulnerable groups, such as those who’ve left or been taken from their home or normal environment.
- The number of images or videos.
- The reason for your possession of the material. Whether it is for sale or swapping.
- Whether you intended to make a profit.
- Whether you brought the video into existence in the sense of taking the original file or photo.
- Degree of planning, organising and sophistication used by you to acquire, store, disseminate or transmit the material.
- Whether you acted alone, or as part of a collaborative network of like-minded people.
- The risk of the material being seen or obtained by vulnerable people such as children.
- The risk of the material being seen or acquired by person susceptible to act in the manner depicted or described in the material.
Our team of Specialist Criminal Lawyers have a wealth of knowledge and experience in these charges. They have obtained exceptionally great results for their clients over many years, and are considered leaders in the profession who will work around the clock at maximising your chances at getting the best possible result.