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Making Child Exploitation Material

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Making Child Exploitation Material – Queensland Offence

Queensland Courts hear offences every year relating to the:

• access of child exploitation material, or “CEM”;
• possession of child exploitation material;
• facilitation of child exploitation material; and
• distribution of child exploitation material.

The offence of making CEM can be prosecuted under either:

• State Law; or
• Commonwealth Law.

This article discusses the Queensland offence.

State Law

Under State Law, pursuant to section 228B of the Queensland Criminal Code Act:

“A person who makes child exploitation material commits a crime.“

Section 228B of the Queensland Criminal Code 1899

Under this section, any attempt to make CEM is taken as if that person had made the CEM.

Child exploitation material can exist in:

• videos;
• photographs;
• drawings; or
• writing.

Related Child Exploitation Offences

The act of making child exploitation material may involve other child pornography offences.

For example, if the material is still in a person’s possession when police charge them with making CEM.

In these circumstances, police may also charge them with possession of CEM.

Depending on a person’s conduct, Commonwealth charges may also apply. Under the Commonwealth Criminal Code, it is an offence to:

• use a carriage service for child abuse material (such as if the person were to distribute the material); or to
• use a carriage service to groom persons under 16 years of age (such as if the person procured a child on the internet).

Our Brisbane lawyers are experienced in both State and Commonwealth offences. We can assist you if you are charged under either or a combination of these laws.

Penalties

Maximum Penalty

This offence carries a maximum penalty of 20 years imprisonment.

The maximum penalty increases to 25 years imprisonment, however, if the offender uses:

• a hidden network in committing the offence; or
• an anonymising service in committing the offence.

Imprisonment as Penalty

Under QLD State Law, there is a general sentencing guideline that the Court must consider. This is that:

• the Court should only impose a sentence of imprisonment as a last resort; and
• a sentence that allows an offender to stay in the community is preferable.

This principle, however, does not apply for the offence of making CEM, nor any other child sex offence. This includes possessing CEM and any other offence of a sexual nature against a child under 16 years of age.

This means that a person convicted of making CEM must serve an actual term of imprisonment. The exception to this is where the Court finds that exceptional circumstances exist.

Non-Custodial Sentences Require Exceptional Circumstances

“Exceptional circumstances” will vary from case to case. Ultimately, whether they are found to apply is a matter for the sentencing Judge. The Court will primarily have regard to factors including, but not limited to:

• the effect of the offence on the child;
• the age of the child;
• the nature of the offence;
• any relationship between the offender and the child;
• any medical report relating to the offender; and
• the offender’s antecedents, age, character, and remorse.

The Court must determine whether exceptional circumstances warrant a non-custodial sentence.

Considerations of the Sentencing Court

Section 9(7) of the Penalties and Sentences Act stipulates sentencing considerations. In sentencing someone for a CEM offence, the Court must primarily consider:

• the nature of the material (this will be set out in the schedule prepared by the prosecutor);
• the apparent age of the child; and
• the nature of the activity shown.

The Court will also consider:

• any relationship between the offender and the child;
• the offender’s conduct with the material (i.e., if it was also distributed);
• the need to deter similar behaviour by others;
• prospects of rehabilitation of the offender. This may include the availability of any medical or psychiatric treatment. The purpose of treatment being to cause the offender to behave in a way that is acceptable to the community;
• the offender’s antecedents (i.e., their age, character, and background circumstances);
• the offender’s remorse or lack of remorse; and
• anything else about the safety of children under 16 the Court considers relevant.

It is important to undertake appropriate preparation prior to sentence. The way the above information is presented to the Court is also extremely important. These factors can have a significant impact on the length of any custodial sentence.

As skilled advocates, our lawyers will present your background and all mitigating factors. We will also help you to undertake preparation with the view to reducing your penalty.

Child Protection Offender Register

If the Court convicts someone of making CEM, it is also a requirement that they:

• are placed on the Child Protection Offender Register; and
• are subject to reporting requirements and other obligations for a period after release.

See our article about the Child Protection Offender Register for more information.

Defences to the Charge

There are some defences available for persons charged with making child exploitation material.

It is a defence for the accused person to prove that:

• they engaged in the conduct that is alleged to constitute the offence for a genuine:
  • artistic purpose;
  • educational purpose;
  • legal purpose;
  • medical purpose;
  • scientific purpose; or
  • public benefit purpose; and
• their conduct was, in the circumstances, reasonable for that purpose.

It is also a defence for the accused to prove that, at the time of the offence, concerning:

• the material alleged to be CEM; and
• the conduct alleged to constitute the offence:
  • the material was subject to a conditional cultural exemption for a relevant showing; and
  • the person engaged in the conduct for the purpose of that showing.

A finding that a defence applies is a question of fact for a jury to determine at a trial.

If you wish to go to trial, our criminal lawyers will skilfully and aggressively defend you.

Focused on Results

It is essential you have experienced solicitors when dealing with offences involving children. Particularly given the serious consequences that follow conviction.

Our Brisbane criminal defence team will make sure your rights are protected.

Aitken Whyte Lawyers Brisbane are focused on results.

Our solicitors can assist you with all criminal matters. Call us on 07 3229 4459 to discuss your needs.

Office Location and Contact Details

Brisbane

Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au