Queensland Courts hear offences every year relating to the:
The offence of making CEM can be prosecuted under either:
This article discusses the Queensland offence.
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:
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:
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.
This offence carries a maximum penalty of 20 years imprisonment.
The maximum penalty increases to 25 years imprisonment, however, if the offender uses:
Under QLD State Law, there is a general sentencing guideline that the Court must consider. This is that:
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.
“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 Court must determine whether exceptional circumstances warrant a non-custodial sentence.
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 Court will also consider:
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.
If the Court convicts someone of making CEM, it is also a requirement that they:
See our article about the Child Protection Offender Register for more information.
There are some defences available for persons charged with making child exploitation material.
It is a defence for the accused person to prove that:
It is also a defence for the accused to prove that, at the time of the offence, concerning:
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.
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.
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000