There is both NSW and Commonwealth legislation in relation to offences involving child abuse material, previously referred to as child pornography offences. If police decide to charge a person for these types of offences, it is often a mixture of Commonwealth and NSW charges.
Generally, NSW offences relate to the possession, production and dissemination of child abuse (or child pornography material) and the grooming or procuring of children for sexual activity. The most commonly prosecuted offences include:
section 91G Crimes Act 1900 (NSW) – using a child to produce child abuse material
section 91H Crimes Act 1900 (NSW) – producing, disseminating and possessing child abuse material
section 66EB Crimes Act 1900 (NSW) – procuring or grooming a child under 16 for unlawful sexual activity
These offences all carry a maximum penalty of over 10 years imprisonment.
Child abuse material is defined by section 91FB of the NSW Crimes Act. It means material that depicts or describes, in such way that a reasonable person would think is offensive taking into account all of the circumstances:
a person who is, or appears to be, or is implied to be, a child as a victim of torture, cruelty or physical abuse; or
a person who is, or appears to be, or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity; or
a person who is, or appears to beg or is implied to be, a child in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity; or
the private parts of a person who is, or who appears to be, or who is implied to be, a child.
The law also sets out the matters that need to be taken into account when deciding whether a reasonable person would think that the material is, in all the circumstances, offensive. Those matters are:
the standards of morality, decency and propriety generally accepted by reasonable adults; and
the literary, artistic or educational merit, if any, of the material; and
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
the general character of the material, including whether it is of medical, legal or scientific character.
The definition is very broad and can encompass things like photographs, drawings and cartoons, stories and other written work and even dolls.
Commonwealth offences generally relate to the use of the internet to transmit, access or solicit child abuse material. Increasingly, people are being charged in relation to conduct occurring over text, Skype, WhatsApp and other instant messaging services for grooming and procuring of children for sexual activity over the internet. They make up a portion of of offences that fall under cybercrime. The most commonly prosecuted offences include:
section 474.19 Criminal Code 1995 (Cth) – using a carriage service to access, transmit , make available or solicit child abuse material.
section 474.26 Criminal Code 1995 (Cth)—use carriage service to procure person under 16 years of age for sexual activity.
section 474.27 Criminal Code 1995 (Cth) – use carriage service to “groom” a person under 16 years of age for sexual activity.
section 474.27A(1) Criminal Code 1995 (Cth) —use carriage service to transmit indecent communication to person under 16 years of age.
A carriage service is a service for carrying communications. Breaking that down, it includes telephone services, internet access services and Voice over Internet Protocol (VoIP).
The evidence involved in these types of offences, particularly the Commonwealth offences, is most often than not very technical in nature. On the face of it, it might just involve images kept in a folder on a computer. But in reality, there is much behind that initial face value brief of evidence. The team at Kingston Fox Lawyers have particular expertise with the technical nature of the evidence, having both prosecuted and defended matters involving technical and complex evidence.
Do you have any questions or would like to chat about your matter? Contact Kingston Fox Lawyers to discuss your matter and consider your options. You can give us a call on 02 8590 6084.