Possession of Child Pornography Offence, Penalties and Defences
Possession of Child Pornography is a serious offence for which you will want to have the best criminal lawyers on your case if you are charged. People who plead guilty to child pornography offences are sentenced to jail in most cases.
Proving child pornography offences is not easy for the police. There are defences available where you have removed the images from your computer and the police have only located them buried deep in a hard drive. The police must also prove it was you who accessed the images as opposed to another person who had access to the computer.
If the police can prove their case against you and you are to be sentenced, we use psychologists, psychiatrists and barristers to prepare your case and get you the most lenient sentence possible.
If you are charged with child pornography offences our expert criminal lawyers can tell you whether you can beat the charge.
Get in touch with Australian Criminal Law Group immediately if you have been, or fear you might be, charged with the offence of Possession of Child Pornography.
What is Child Abuse Material?
Child Abuse Material in New South Wales is covered under Section 91FB of the Crimes Act 1900 (NSW) which describes child abuse material as;
Material that depicts or describes – in a way that reasonable persons would regard as being offensive;
- a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse; or
- 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
- 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
- the private parts of a person who is, appears to be or is implied to be, a child.
Whether a “reasonable persons” would regard particular material as being “in all circumstances offensive” requires the following matters be taken into account;
- 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 a medical, legal or scientific character).
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 and the private parts of a person are—
- a person’s genital area or anal area (bare or covered by underwear)
- the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.
What is “Production, dissemination or possession of child abuse material” offence?
It is a crime to produce, disseminate or possess child abuse material (a.k.a. child pornography). This is dealt with under the Crimes Act 1990 (NSW) which includes the following definitions;
- Disseminate child abuse material includes sending, supplying, exhibiting, transmitting or communicating it to another person; making it available for access by another person, or entering into any agreement or arrangement to do so.
- Possess child abuse material includes being in the possession or control of data (in relation to the material in the form of data).
- Produce child abuse material includes filming, photographing, printing or otherwise making child abuse material. It also includes altering or manipulating any image for the purpose of making child abuse material, or entering into any agreement or arrangement to do so.
If the above elements can be proven beyond reasonable doubt, you will still be found not guilty if you prove that you did not know or could not reasonably be expected to have known that you possessed, disseminated or produced child abuse material.
Maximum Sentence for possession, production and dissemination of child abuse material
Using a child to produce child abuse material is punishable by a maximum sentence of:
- 14 years if the child is under the age of 14
- 10 years if the child is age 14 or 15
- 15 years for use of a carriage service for child abuse material
What are the penalties for child pornography possession, production and dissemination charges?
Production, Dissemination or Possession of Child Abuse Material is an extremely serious offence but one in which offenders are often sentenced to penalties other than full time imprisonment.
Following is a list of the penalties a court can issue for this offence.
- Section 10 Dismissal , non-conviction
- Conditional Release Order with or without conviction
- Fine Order with conviction
- Community Correction Order with conviction
- Intensive Correction Order with conviction
- Full-Time Imprisonment with conviction
Following are alternative penalties available that the court can impose for this charge.
How do i beat a charge of possessing child abuse material?
You will be found not guilty of the offence of Production, Dissemination or Possession of Child Abuse Material if the police cannot prove beyond reasonable doubt you produced, disseminated or possessed child abuse material and that you did so with intention and knowledge that you were doing so.
If you have been charged with possessing child pornography but did not commit the offence you might like to plead no guilty. If so, get in touch with Australian Criminal Law Group immediately and we will be able to advice you on your case, and start to develop your best defence. Our criminal lawyers regularly have their clients cases acquitted for possession, production and dissemination of child abuse material.
What are the possible defences for child pornography possession?
Following is a list of just some of the potential defences for this charge;
- That you intend to possess, product or disseminate the child abuse material. If you prove that you did not know or could not reasonably be expected to have known that you committed the offence, then you are likely to be acquitted.
- The child pornography material came into your possession unsolicited and as soon as you became aware of it, you took reasonable steps to get rid of it then you are likely to be acquitted.
- Your conduct was of public benefit of enforcing or administering the law, monitoring compliance with the law or the administration of justice and did not extend beyond what was of public benefit.
- You are a law enforcement officer acting in the course of your duties and your conduct was reasonable in the circumstances.
- That the material was classified under the Classification (Publications, Films and Computer Games) Act 1995, other than as refused classification.
- You were conducting research approved in writing by the Attorney General that requires you to deal with the child abuse material.
Every case is different however there are a number of potential defences that can be used against child pornography charges. Speak to your criminal lawyer regarding your defeence. A good criminal lawyer will assess the unique circumstances of your case in order to recommend the best approach to building your defence.
Pleading guilty to possession of child pornography
If you agree that you have committed the offence and the police are able to prove so, it is best to plead guilty. You will normally receive a discount on your sentence, and it will demonstrate remorse and contrition.
Our experienced solicitors can negotiate with prosecutors for you to plead guilty to less serious facts, or even a less serious charge.
The offence of Production, Dissemination or Possession of Child Abuse Material carries a maximum penalty of two years imprisonment in the Local Court and 10 years imprisonment in the District Court. These penalties are typically reserved for the worst offenders.
If you are charged with Production, Dissemination or Possession of Child Abuse Material you should contact our office immediately.
Why choose Australian Criminal Law Group?
Our criminal lawyers are experts at obtaining the best outcome possible for sex offences. For these offences, a good lawyer can be the difference between a conviction and no criminal record and freedom or jail.
To discuss your charge of Possess child abuse material call Australian Criminal Law Group at our Sydney, Parramatta, and Blacktown offices on (02) 8895 8167 or make a website inquiry today.
Case Study
Our client was charged with use carriage service for child pornography and possess child pornography. Mr Correy argued that whilst child pornography was on his computer, it had been downloaded inadvertently with a bulk amount of adult porn. We argued that our client had so much adult pornography that he had negligently failed to delete the child pornography. He had downloaded by mistake. The Magistrate accepted that whilst our client failed in his duty to remove the child pornography it could not be proven he received sexual gratification from it. The magistrate held whilst normally these offences required a jail sentence, the peculiar facts in this case meant he could deal with it by a good behaviour bond.
Case Study
Mr Harb represented a client charged with using a carriage service to access child abuse material. Police located some 800 photos and 200 videos. He was trying to access age appropriate pornography. Despite being relentlessly argued by the defence the judge found in our client’s favour and did not sentence him to imprisonment.
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Australian Criminal Law Group and its clients make every reasonable effort to ensure the accuracy and validity of the information provided on its web pages. However, given the laws in NSW and Australia are continually changing, Australian Criminal Law Group make no warranties or representations as to its accuracy.