Definition of Child Exploitation Material
Child exploitation material means material that, in a way 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 sexual activity; or
- b) In an offensive or demeaning context; or
- c) Being subjected to abuse, cruelty or torture.
The word “material” includes anything that contains data from which text, images or sound can be generated.
There are a number of offences in relation to child exploitation material outlined below, this list, however, is not exhaustive. There has been the recent addition of possession and supply of ‘child abuse objects’, which are dolls, robots or other objects which represent a child under the age of 16. Those types of offences are not considered in this guide.
Involving a child in making child exploitation material
A person who involves a child in the making of child exploitation material commits a crime – maximum penalty 20 years imprisonment.
For this offence to be made out, the prosecution must prove:
1. The defendant involved a child in the making of child exploitation material.
This offence applies in circumstances where the prosecution could prove the defendant in some way involved a child in the making a child exploitation material, without necessarily making the material. For example, encouraging a child to take sexual photographs of his or herself.
Making child exploitation material
A person who makes child exploitation material commits a crime – maximum 20 years imprisonment.
For this offence to be made out, the prosecution must prove:
- The defendant made child exploitation material.
This offence applies in circumstances where the prosecution could prove the defendant made child exploitation material. A common example of this is filming or photographing a child in sexual contexts.
Distributing child exploitation material
A person who distributes child exploitation material commits a crime – maximum 14 years imprisonment.
For this offence to be made out, the prosecution must prove:
- The defendant distributed child exploitation material.
The legal meaning of “distribute” includes –
(a) communicate, exhibit, send, supply, transmit child exploitation material to someone, whether a particular person or not; and
(b) make child exploitation material available for access by someone, whether by a particular person or not; and
(c) enter into an agreement or arrangement to do something in paragraph (a) or (b); and
(d) attempt to distribute child exploitation material.
Some concrete examples of a defendant distributing child exploitation material are posting the material on the internet, sending the material in a text message to someone else, or having images on a hard drive which is then shared with some else.
Possessing child exploitation material
A person who knowingly possesses child exploitation material commits a crime – maximum 14 years imprisonment.
For this offence to be made out, the prosecution must prove:
- The defendant possessed child exploitation material
- The defendant knowingly possessed the material.
Possession applies to material on electronic devices such as computers or phones or video recorders. Unfortunately, it is common in cases such as these for the defendant to possess numerous images and videos on a computer, often hundreds or even thousands.
Possible Defences
It is a defence for a defendant to prove that—
(a) the person engaged in the conduct that is alleged to constitute the offence for a genuine artistic, educational, legal, medical, scientific or public benefit purpose; and
(b) the person’s conduct was, in the circumstances, reasonable for that purpose.
It is a defence for the defendant to prove that, at the time of the alleged offence—
(a) the material that is alleged to be child exploitation material was subject to a conditional cultural exemption in relation to a relevant showing; and
(b) the person engaged in the conduct that is alleged to constitute the offence for the purpose of the relevant showing.
It is a defence for the person to prove that the material alleged to be child exploitation material is a computer game, film or publication that is classified as something other than RC.
It should be noted that cases where any of the above defences apply are relatively rare, as the prosecution will generally not proceed with an indictment when the prosecution is aware of such circumstances.
Sentencing Principles
The Penalties and Sentences Act requires a court to take the below principles into account when considering what penalty to impose on an offender:
The court must have regard primarily to—
(a) the nature of any material describing or depicting a child that the offence involved, including the apparent age of the child and any activity shown; and
(b) the need to deter similar behaviour by other offenders to protect children; and
(c) the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and
(d) the offender’s antecedents, age and character; and
(e) any remorse or lack of remorse of the offender; and
(f) any medical, psychiatric, prison or other relevant report relating to the offender; and
(g) anything else about the safety of children under 16 the sentencing court considers relevant.
Further, while the Penalties and Sentences Act ordinarily states the court must have regard to the principles that a sentence of imprisonment is only to be imposed as a last resort and a sentence which allows an offender to remain in the community is preferrable, this does not apply to offences which relate to child exploitation material.
Assessing the seriousness of child exploitation material
Relevant to sentencing, the Queensland Courts have adopted a grading system from the UK to assess the serious of child exploitation material, particularly to sexual material –
- Images depicting erotic posing with no sexual activity;
- Sexual activity between children or solo masturbation by a child;
- Non-penetrative sexual activity between adults and children;
- Penetrative sexual activity between children and adults;
- Sadism or bestiality.
Usual Penalties
Sentences of actual imprisonment are the usual outcome for offences such as these. It is possible for offenders to avoid serving imprisonment, but to have the best chance a defendant should absolutely seek the services of an experienced solicitor.
Conclusion
Parliament has deemed charges of this kind serious enough that the maximum penalties are 14 years or higher. Obviously, someone charged with offences of this kind will find themselves in a perilous position; legal, socially and economically.
How do I get more information or engage Clarity Law to act for me?
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