Being charged in respect of child pornography or child abuse material is a particularly serious crime and carries with it custodial sentences as part of the penalties available. If you require defence lawyers who concentrate only on criminal law, and are familiar with the law, the cases, and the defences available, then make contact with our lawyers at McKenzie McLoughlin Law.
Our two criminal lawyers, Josh McKenzie and James McLoughlin are former prosecutors and investigators for the NSW Police and Director of Public Prosecutions. Don’t underestimate this advantage when selecting your legal representative. Call Josh and James for experienced legal representation.
What is the main offence relating to child abuse material?
The offence of produce, disseminate or possess child abuse material is contained in section 92H(2) of the Crimes Act 1900 (NSW) and states:
“A person who produces, disseminates or produces child abuse material is guilty of an offence.”
What is child abuse material?
Section 91H(1) of the Crimes Act 1900 (NSW) states that child abuse material is material that depicts or describes, in a way that reasonable persons would regard as being, in all circumstances 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.
- 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 the a child or to otherwise create a depiction referred to in subsection 91(H)(1).
It is important to note that as per the definition, the ‘private parts’ of a person are a person’s genital area or anal area, or the breasts of a female person.
The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include:
- 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 asa 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)
What does ‘produce’ child abuse material include?
Producing child abuse material includes filming, photograph, print or otherwise making child abuse material, or altering or manipulating any image for the purpose of making child abuse material, or entering into any agreement or arrangement to do so.
What does ‘disseminate’ child abuse material include?
Section 91H(1) of the Crimes Act 1900 (NSW) states that disseminate includes:
- Send, supply, exhibit transmit or communicate it to another person, or
- Make it available for access by another person, or
- Enter into any agreement or arrangement to do so.
What does possess child abuse material include?
Section 91H(1) of the Crimes Act 1900 (NSW) states:
- In relation to the material in the form of data, being in control of data.
What does ‘in control of data mean?’
Section 308F(2) of the Crimes Act 1900 (NSW) states:
- Possession of a computer or data storage device holding or containing the data or of a document on 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)
What sort of conduct amounts to possessing, producing or disseminating child abuse material?
In respect of possessing child abuse material, this might include having pictures of naked children or content in relation to sexual abuse of young children.
In respect of disseminating child abuse material, that may include conduct by way of emailing a naked picture of a child to another, or posting a video of a child committing a sexual act on the internet.
For an example of producing child abuse material, this could include taking pictures of a naked or filming a child who is involved in a sexual act.
Are there any defences available in respect of possessing, producing or disseminating child abuse material?
Defences include, but are not limited to:
- Attempting to get rid of all child abuse material as soon as you became aware of your possession of it
- Where a person had no knowledge of the production, dissemination or possession of the child abuse material
Why McKenzie McLoughlin?
We are experienced criminal practitioners who have had experience appearing in these types of matters. As former prosecutors, we recognise the strengths and weaknesses of any brief of evidence and will give you honest advice in respect of your matter. Through years of experience we recognise that there are two sides to every story. If you are charged with an offence involving child pornography or child abuse material, contact Josh and James at McKenzie McLoughlin Law. We offer fixed fees for most of our work.