Section 91G of the Crimes Act 1900 (NSW) (henceforth, the Act) stipulates that children are not to be used for pornographic purposes. Specifically, any person, who uses of a child under the age of 14 for the production of (a) ‘child abuse material’, or (b) causes or procures a child of that age to be so used, or (c) having the care of a child of that age, consents to the child being used or allows the child to be so used is guilty of an offence as per Section 91G(1). The maximum imprisonment term is 14 years.
As per Section 91G(2), any person who produces child abuse material, causes or procures a child of that age to be so used or while caring for a child of that age, consents to the child being so used or allows the child to be so used, and where is of or above the age of 14 is liable for a 10 year imprisonment term.
Notably, for the purposes of this section, a person may have the care of a child even if they are not necessarily entitled by law to have custody of the child (s91G(4)).
Further, as per subsection 5 of Section 91G, where on the trial of a person for an offence under subsection (1) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (2), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.
CHILD ABUSE MATERIAL
Section 91FB of the Act defines ‘child abuse material’. It should be taken to mean material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive. These include: (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) 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 (c) 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(d) the private parts of a person who is, appears to be or is implied to be, a child.
Further, the matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character).
Notably, material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).
As such, the ‘private parts’ of a person are a person’s genital area or anal area, or the breasts of a female person.
PRODUCTION, DISSEMINATION, POSSESSION
Generally, child pornography should be taken to mean material that depicts or describes, in a manner that would be offensive to a reasonable person, a person under or apparently under the age of 16 years, (i) engaged in sexual activity, or (ii) in a sexual context, or (iii) as the victim of torture, cruelty, or physical abuse (even if it is not in a sexual context).
As per Section 91H (2), any person who produces, disseminates or possesses child abuse material is guilty of an offence and punishable for a maximum term of 10 years. To produce such material is to film, photograph, print or otherwise make child abuse material or to alter or manipulate any image for the purpose of making child abuse material. It could also be a result of an agreement or arrangement to do so.
To disseminate such material is to send, supply, exhibit, transmit or communicate this material to another. Or, in the alternative to make it available for access by another person or enter an agreement or arrangement to do so.
To possess such material is to, hold material in the form of data, being in possession or control of data. Within the meaning of section 308F (2), this includes, possession of a computer or data storage device holding or containing the data or of a document in which the data is recorded, and control of data held in a computer that is in the possession of another person (whether the computer is in this jurisdiction or outside this jurisdiction). In NSW, a court can impose a range of penalties for the possession of child pornography charge, including a section 10 order: possession of child pornography proven but dismissed, a fine, a good behaviour bond, a community service order (CSO), a suspended sentence, an intensive correction order (previously periodic detention), a periodic detention or a prison sentence.
DEFENCES TO POSSESSION AND DISSEMINATION
One possible defence to the possession of child pornography is that the accused came in contact with such material unknowingly and in an unsolicited manner and took reasonable steps to get rid of it as soon as he/she became aware of its existence.
Another possible defence is that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed child pornography. Further, individuals working under their professional capacities, can assert the same as their defence to possession or dissemination. In other words, the individual, having regard to the circumstances in which the material concerned was produced, used or intended to be used, was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant’s conduct was reasonable for that purpose, or that the defendant was a law enforcement officer acting in the course of his or her official duties. This also includes individuals involved in classification of such material.
If you believe you may be guilty of possession, dissemination or production of child pornography material, it is imperative that you a criminal lawyer immediately. Depending on your circumstances, our team of experienced child pornography defence lawyers will be able to assist achieve the best outcome possible.