Use Carriage Service For Child Abuse Material

Under commonwealth criminal law, there are numerous offences relating to child abuse material. The offence of Use Carriage Service for Child Abuse Material is contained in section 474.22 of the Criminal Code Act 1995 (Cth) and is punishable by a maximum penalty of 15 years imprisonment.

The Offence Of Use Carriage Service for Child Abuse Material

The offence of use carriage service for child abuse material is committed where a person:

• accesses, transmits, makes available, publishes, distributes, advertises, promotes or solicits material; and
• uses a carriage service (such as an internet service provider, mobile provider); and
• the material is child abuse material.

What Is The Definition Of Child Abuse Material?

Child abuse material includes material that describes or depicts a person, or a representation of a person who:

• is, or appears or is implied to be, under 18 years of age; and
• is or appears to be subject to torture, cruelty or physical abuse; or
• is or appears to be in a sexual pose or engaging in sexual activity with or without someone else; or
• is in the presence of another person who is in a sexual pose or engaging in sexual activity; in a way that a reasonable person would find offensive.

Child abuse material also includes material that describes or depicts, for a sexual purpose either:

• a sexual organ or the anal region of a person who is, or appears to be under the age of 18; or
• the breasts of a female who is or appears to be under 18 years of age; and
• does so in a way that a reasonable person would consider offensive.

Child abuse material can include a doll or other object that resembles a person (or body part of a person) who is under the age of 18 where a reasonable person would consider

What Is a Carriage Service?

 A carriage service is defined in the Telecommunications Act 1997 (Cth) and includes landlines, mobile phones and internet services.

What Material is Offensive?

To assess whether material is offensive, a variety of circumstances will be considered including:

• the accepted standards of morality, decency and propriety;
• the literary, artistic or educational merit of the material;
• the general character of the material including whether it is for a legitimate purpose (for example, a medical, educational or legal purpose).

What Must The Police Prove?

To find a person guilty of this offence, the court must be satisfied that they:

• accessed material; or
• caused material to be transmitted to themselves; or
• transmitted, made available, published, distributed, advertised or promoted material; or
• solicited material; and
• used a carriage service; and
• the material was child abuse material; and
• they engaged in the conduct voluntarily.

This is outlined in the Criminal Code Act 1995 (Cth) Section 474.22.

What Are The Possible Defences?

There are a number of defences available to the charge of use carriage service for child abuse material. There is an evidential burden on the accused to raise these defences. Defences include:

• That the person did not commit the acts alleged (factual defence);
• That the material was sent for a legitimate purpose (for example, for a public benefit);
• That the person acted under duress

What Is The Definition Of Public Benefit?

To determine if the conduct is of public benefit the court makes a determination of the facts. It does not consider the motives of the person.

The conduct is only of public benefit if it is necessary:

• for assistance in enforcing laws;
• for monitoring compliance with or investigation a contravention of laws; or
• for the administration of justice; or
• for conducting scientific, medical or educational research that has been approved by the AFP Minister in writing.

Which Court Will Hear The Matter?

When a New South Wales resident is charged with the offence of use carriage service for child abuse material, it must be finalised in the District Court. For ACT offenders, it must be finalised in the Supreme Court. In Queensland the matter will be heard in the District Court and in Victoria, it will be heard in the Magistrates Court.

Penalties

As this is a Commonwealth offence if a person has entered a plea of guilty or been found guilty they will be sentenced under Commonwealth sentencing laws. Commonwealth penalties include:

• dismissal without conviction
• conditional release after conviction
• fines
• recognizance release order
• imprisonment

The offender can also receive other sentence options that are available in the state or territory where the matter is heard. This means in New South Wales conditional release orders, community correction order (CCO) and intensive correction orders (ICO) are also available. For offences in the ACT, this means that good behaviour orders, suspended sentences and intensive correction orders are also available on sentencing.

Implications Of A Conviction

Court proceedings can be attended by the public, including the media. This means that in some cases,  other members of the community will become aware of or be informed of the proceedings.

For NSW offences, a finding of guilt or conviction will result in the person being a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW). For ACT offences, a person found guilty of the offence is a registrable person under the Crimes (Child Sex Offenders) Act 2005 (ACT) if the matter proceeds to sentence, even if they avoid a conviction. Being placed on a register will result in an array of ongoing obligations, such as the requirement to report annually to police and the provision of personal details, including any changes or address and travel plans, to the police.

It is important you get specific advice your own state or territory. Please contact one of our criminal law experts on 1300 038 223 or send us an email for further advice and assistance.