Child Pornography

It is an offence to Produce, disseminate or possess child pornography.

Child pornography is material that in all the circumstances causes offence to reasonable persons depicting a person(s) under or apparently under 16 years of age: engaged in sexual activity, in a sexual context, or as the victim of torture, cruelty, or physical abuse.

Disseminating child pornography includes sending, supplying exhibiting transmitting or communicating it to another or making it available for access by another person to , in a sexual context or , as the victim of torture , cruelty  , or physical abuse (whether or not in a sexual context).

Certain limited defences exist to the law of NSW in relation to Child Pornography. They include that a defendant did not know and could not reasonably be expected to have known that he or she produced, disseminated, or possessed, child pornography,

OR,

The material came into the possession of a defendant unsolicited, and the defendant promptly took reasonable steps to get rid of it.

The Courts regard this type of offence as being very serious.

In a recent decision of Booth  [2009] NSWCCA 89, Her Honour Justice Simpson stated  (at paragraphs 47 and 48):

“   …  the need to deter others from involving themselves in child pornography by signalling that such behaviour will be met by significant penalties is an important consideration. So also is denunciation of those who engage in this callous and predatory crime. I am persuaded that the sentence imposed was manifestly inadequate. No penalty other than a term of full time custody is sufficient to meet sentencing needs in this case.”

If you are being investigated by the police in relation to any Child Pornography offence please contact us.

The scope of pornography is vast. It also includes fictional cartoon characters if it depicts a person or a representation of a person, even if the person is fictional or imaginary.

If offenders have accessed the internet to access child pornography material, then the offender may be charged under the Criminal Code Act 1995 (Cth) for using a carriage service for child pornography material.

The maximum penalty for:

• Possessing child pornography;
• Producing child pornography (includes film, photograph, print or make child pornography, alter or manipulate any image for the purpose of  making child pornography, or enter any agreement or arrangement for child pornography); or
• Disseminating child pornography (includes send, supply, exhibit, transmit, communicate, make available for access, or enter into any agreement or arrangement for child pornography),

is ten years if the matter is determined in the District Court.

NB: The prior maximum penalty for possessing child pornography was five years.

When determining whether the conduct of the offender is sufficient of an offence, the decision of R v Gent derives the factors to consider. The factors include:

1. The nature and content of the pornographic material, including the age of the child(ren) and the degree of the sexual activity portrayed;
2. The number of images or items of material possessed;
3. Whether the images or items are to be distributed; and
4. Whether the offender will profit from the offence.

The number of images may not be the “real point”. Where the child pornography was for personal use only, the emphasis on quantity is based on the number of different children who are depicted and victimised.

Each individual child pornography case is to be considered in terms of their own facts, and not to be broad based categorisation of types of offending.

It is suggested no admissions are to be made to the authorities prior to obtaining legal advice.

If you have been charged with possessing child pornography, producing child pornography or disseminating child pornography, call the Criminal Law Centre. We have extensive experience in these matters and are dedicated to providing the best legal advice 24/7. Call us on (02) 9891 4200. We are on your side.