Possession of Child Abuse Material

In NSW it is an offence under Section 91H(2) of the Crimes Act 1900 to Produce, Disseminate or Possess Child Abuse Material. This offence carries a maximum penalty of ten years imprisonment. Child abuse material is also known as child exploitation material.

Child exploitation material legislation

Section 91FB of the Crimes Act 1900 (NSW) states:

• “child abuse material” means material that depicts or describes, in a way that reasonable person would regard as being, in all the 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.

• 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 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 (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).
• The “private parts” of a person are:
  • a person’s genital area or anal area, or
  • the breasts of a female person.

What Does Child Exploitation Material Include?

Section 91H(1) of the Crimes Act 1900 (NSW) state that the offence includes::

• Filming, photographing, printing 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 is Disseminating Child Exploitation Material?

Section 91H(1) of the Crimes Act 1900 (NSW) states that disseminating includes:

• Sending, supplying, exhibiting, transmitting or communicating material  to another person, or
• Making it available for access by another person, or
• Entering into any agreement or arrangement to do so.

Possession of child exploitation material includes data

Possession of child abuse material includes possession of material in the form of data. This may be:

• Possession of a computer or data storage device holding or containing the data or of a document in 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 Actions Might Constitute the Offence of Possess Child Exploitation Material?

Examples of Produce Child Abuse Material include:

• Taking pictures of a naked child under the age of 16;
• Filming a child in a sexual act.

Examples of disseminating material include:

• Emailing a naked picture of a child under 16;
• Making an agreement with another person to provide pornographic material of children under the age of 16;
• Post a video of a child committing a sexual act on the internet.

Examples of possessing material include:

• Having a magazine of naked children under the age of 16;
• Have a video on your computer of a child being tortured.

Possible Defences

Possible defences to a  charge of Produce, Disseminate or Possess Child Abuse Material charge are:

• That the accused attempted to get rid of the child abuse material as soon as they became aware of it;
• That the accused could not have reasonably have known that they had produced, possessed or disseminated child abuse material.

Which Court Will Hear Your Matter?

This matter is a Table 1 offence which means that either the DPP or an accused can elect to have the matter dealt with in the District Court. If no election is made it will be dealt with in the Local Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.