Under s474.19 of the Commonwealth Criminal Code 1994 (Cth), it is an offence to use a carriage service for child pornography material. ‘Carriage service’ in this sense has the same meaning as found in the Telecommunications Act 1997 (Cth), being ‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’ (s7 of the Telecommunications Act 1997 (Cth)).
It is an offence if the person ‘accesses material’ (s474.19(1)(a)(i)), ‘causes material to be transmitted to himself or herself’ (s474.19(1)(a)(ii)), ‘transmits, makes available, publishes, distributes, advertises or promotes material’ (s474.19(1)(a)(iii)), or ‘solicits material’ (s474.19(1)(a)(iv)). If the person uses a carriage service (s474.19(1)(aa)) and the material is child pornography material’ (s474.19(1)(b)), the penalty is imprisonment for 15 years.
The physical elements of the offences are intention as the fault element in s474.19(1)(a) and recklessness as the fault element for the circumstances in s474.19(1)(b), pursuant to instructions in s474.19(2). Absolute liability applies to the person using the carriage service, meaning that there is no need to prove that the carriage service was used (s474.19(2A)) – it is accepted as fact, similar to how a traffic offence works.
Possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service is dealt with in s474.20. A person is guilty of an offence if they have ‘possession or control of material’ (s474.20(1)(a)(i)), or ‘produces, supplies or obtains material’ (s474.20(1)(a)(ii)) and ‘the person that has possession or control, or engages in that production, supply or obtaining, with intention that the material be used’ by that person or another person (s474.20(1)(c)), pursuant to the offence in s474.19. The penalty is imprisonment for 15 years.
To clarify any confusion, s474.19 relates to using a carriage service for child pornography material, while s474.20 is concerned with possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service. There is a subtle difference between these sections, however they do tend to intersect. While s474.19 and s474.20 are related, the operation of s474.20 is not dependent on s474.19, and a person may be found guilty of s474.20 even if a finding of guilt under s474.19 is impossible, according to s474.20(2). It is not an offence to attempt to commit an offence under s474.20(1).
Relevant defences relating to child pornography material charges relate to the conduct being engaged with for a ‘public benefit’ (s474.21(1)(a)) and it ‘does not extend beyond what is of public benefit’ (s474.21(1)(b)). The conduct is assessed in terms of public benefit as a question of fact, and the person’s motives in engaging in the conduct are irrelevant, pursuant to s474.21. Public benefit in terms of the conduct assessed relates directly to the conduct assisting in law enforcement, the administration of justice or the conduction of scientific, medical or educational research (s474.21(2)).
In circumstances such as this, there are also sections covering the event where a person has used a carriage service for child pornography material (pursuant to s474.19) or was charged with possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service (pursuant to s474.20) and engaged in the conduct ‘in good faith for the sole purpose of’ assisting detection of prohibited or potential prohibited content in assistance to the Children’s e-Safety Commissioner (s474.21(4)). There are similar exceptions for the circumstance where the person is not criminally responsible for such an offence where ‘the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties’ (s474.21(3)(a)) and ‘the conduct of the person is reasonable in the circumstances for the purpose of performing that duty’ (s474.21(3)(b)).
Using a carriage service for child abuse material is dealt with separately under s474.22 of the Commonwealth Criminal Code 1994 (Cth). A person is found guilty of an offence if they access material (s474.22(1)(a)(i)), cause the material to be transmitted to himself or herself (s474.22(1)(a)(ii)), transmit, make available, publish, distribute, advertise or promote material (s474.22(1)(a)(iii)) or solicit material (s474.22(1)(a)(iv)) and the person does so using a carriage service (s474.22(1)(aa)) and the material is child abuse material (s474.22(1)(b)). The imprisonment period for this charge is 15 years. Similar principles apply in terms of how the offence is dealt with relating to intention and possession, control, producing, supplying or obtaining the material in s474.20.
Aggravated offences are dealt with under s474.24A of the Commonwealth Criminal Code 1994 (Cth). A person commits an offence under this section if an offence is committed pursuant to one or more of ss474.19, 474.20, 474.22 or 474.23, and ‘the commission of each such offence involves two or more people’ (s474.24A(1)). The penalty for this offence is imprisonment for 25 years. The fault elements for an aggravated offence are determined with reference to the the original charge (for example, those described in s474.19(2).
Interestingly, if someone is convicted or acquitted of an aggravated offence pursuant to s474.24A, they may not be convicted with an offence under ss474.19, 474.20, 474.22 or 474.23 in the interest of preventing a ‘double jeopardy’ situation (see s474.24A(5), (6) and (7)). In the situation where the accused is not found guilty of an aggravated offence (s474.24B(a)), but it is satisfied beyond a reasonable doubt that they are guilty of the underlying offence contained in ss474.19, 474.20, 474.22 or 474.23 (s47424B(b)), they may be found guilty of the underlying offence, as long as procedural fairness is evident in that finding of guilt, pursuant to s47424B.
Other issues under the ambit of this topic include the use of a carriage service to transmit indecent communication to a person under 16 years of age (s474.27A(1)) or to procure a person under 16 years of age (s474.26(1)).
If you have reason to believe that you may be charged with an offence related to using a carriage service for child pornography material, or you have already been charged, contact one of our Criminal Lawyers. Based in Sydney, our legal team will protect your reputation and work to clear your name. We can provide expert advice to ensure that the matter is dealt with quickly and thoroughly.
Call George Sten & Co criminal lawyers on 9261 8640 or our 24 hour line on 0412 423 569.