In Australia, the possession, production, and distribution of child pornography (child exploitation material) is illegal and carries multiple criminal offences. Therefore, if you are facing charges, Mark Savic Legal advises that you seek legal counsel immediately.
What is Child Exploitation Material?
Under Section 207A of the Criminal Code 1899, child exploitation material is defined as material likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years:
a) in a sexual context, including for example, engaging in a sexual activity; or
b) in an offensive or demeaning context; or
c) being subjected to abuse, cruelty or torture.
To be charged with possession, police must prove:
- The defendant possessed child exploitation material. Possession involves custody or control of the thing and /or the right to obtain custody or control of the thing.
- The defendant knowingly had the material in their possession. ‘Material’ includes videos, photographs, drawings, words, stories, and cartoons.
What is the Oliver scale?
In Queensland, the Oliver scale is applied to child exploitation material cases to categorise images according to the nature of the activity depicted, ranging from erotic posing with no sexual activity to cartoon drawings. Careful consideration is given as to whether to mount a defence to the charge, and what steps need to be taken to minimise penalties.
Penalty for Child Exploitation Material
In recent years, the penalty for committing offences relating to possession of child exploitation material in Queensland dramatically increased in severity. As of September 2020, the Penalties and Sentences Act 1992 (QLD) was amended so courts are obliged to impose a sentence of imprisonment unless there are exceptional circumstances.
If convicted, the maximum penalty for possessing child exploitation material is 14 years imprisonment. Matters which dramatically affect the applicable sentencing range include accurate diagnosis of the cause of the offense and thorough relevant rehabilitation.
In New South Wales, disseminating or possessing child abuse material is punishable by a maximum sentence of 10 years. 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
At Mark Savic Legal, our court experience has shown that identifying a genuine medical trigger for such conduct dramatically reduces an offender’s culpability and proper treatment lessens the need for deterrent penalties like imprisonment.
Like Queensland, New South Wales recently affirmed that unless ‘exceptional circumstances’ exist, a sentence of immediate imprisonment is warranted for child pornography offences. This relates to:
- how the material came into the possession of the offender.
- how long and in what way they were kept.
- what the offender did with the materials.
There may be one or more matters that a court can take into consideration when trying to identify these circumstances. However, given the extremely narrow scope these factors constitute, it is highly advisable to seek appropriate legal counsel. Only a skilled criminal lawyer experienced in these types of cases will be able to identify and effectively present the relevant factors to a court.
Will a conviction be recorded?
Given that the offence carries a maximum penalty of 14 years imprisonment and that the vast majority of offenders convicted receive a period of imprisonment, avoiding a record of conviction is extremely difficult. But it can be done.
In a recent case, Mark Savic Legal were able to convince the court that their client should receive a penalty which allowed a recording against the client’s name to be omitted. This was done by demonstrating that the Crown could not adequately classify each of the images, and that the type of treatment and rehabilitation specific to the client’s reasons for offending had to be secured. Lastly, strong evidence of the intertwined relationship between the client’s employment and continued rehabilitation needed to be demonstrated. In the end, this was accomplished, and the client was given an appropriate sentence without a recorded criminal conviction.
Seeking legal advice early is critical
Immediately after being charge with child pornography possession, the steps you take can greatly affect the outcome of a trial. Therefore, it is imperative to seek legal counsel as soon as possible.
If you’ve been charged with a child pornography related offence in Coffs Harbour, Woolgoolga, Maclean, Grafton, Yamba, Northern NSW, The Gold Coast or Brisbane, contact Mark Savic Legal today to discuss your options.