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Offences Against Children and Minors

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“Use of A Carriage Service for Child Abuse Material”

“Using A Carriage Service To ‘Groom’ Persons Under 16 Years of Age”

Child Exploitation Material (CEM) Offences, Generally

There are a broad range of offences, both State and Commonwealth, which apply to:

• accessing child exploitation material;
• distributing child exploitation material; and
• possessing child exploitation material.

The State offences in Queensland relate in general to offences involving the:

• possession of CEM; or
• making of CEM.

Commonwealth offences involve the use of a “carriage or postal service”.

Depending on the circumstances of the offending, police can charge offenders with both:

• State offences; and
• Commonwealth offences.

Our Brisbane criminal lawyers are experienced in representing clients charged under both:

• Queensland legislation for making, possessing, or distributing child exploitation material; as well as
• Commonwealth legislation for using a carriage or postal service to facilitate such activity.

Our lawyers can expertly defend you should you require representation.

What Is “Child Exploitation/Abuse Material”?

Queensland defines Child Exploitation Material as:

“…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 a sexual activity; or

(b) in an offensive of demeaning context; or

(c) being subjected to abuse, cruelty, or torture.”

See s.207A, Criminal Code Act 1899 (QLD)

The Commonwealth legislation for Child Abuse Material is broad. It includes material that depicts:

• a person who is or appears to be under the age of 18 years of age; or
• the representation of a person who is or appears to be under the age of 18 years of age; and
  • appears to be the victim of torture, cruelty, or physical abuse; or
  • is implied to be a victim of torture, cruelty, or physical abuse; or
  • is engaged in, or appears to be engaged in, a sexual pose or activity; or
  • is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or activity.

It also includes any material that depicts:

• a sexual organ for a sexual purpose; or
• the anal region for a sexual purpose; or
• the breasts of a female who is, or appears to be, under the age of 18 for a sexual purpose.

See s.473.1, Criminal Code Act 1995 (Cth).

Throughout this article, the phrases:

• “Child Exploitation Material”; and
• “Child Abuse Material”;

are interchangeable. All references are to material that is generally regarded as “child pornography”.

The Offences

The offences described in this article relate to conduct using a “carriage service”. The definition of “carriage service” is a:

“service for carrying communications by means of guided and/or unguided electromagnetic energy”.

See s.7, Telecommunications Act 1997 (Cth)

In practical terms, this means that a carriage service can be any form of communication such as:

• text messages;
• telephone calls;
• emails; or
• social media.

Child Abuse and Child Exploitation Material offences capture a broad range of conduct.

Conduct can range from:

• young people “sexting” images to their peers; to
• sophisticated online networks who create and distribute CEM.

See Queensland Sentence Advisory Council, “Sentencing Spotlight on… Child Exploitation Material Offences”.

It can also include individuals who use a “file-sharing” site and receive a file containing CEM. This can even be in circumstances where the individual does not know and did not intend to receive this. See below regarding recklessness. In the case of torrent sites, they may also have unintentionally transmitted it to others.

Use of A Carriage Service for Child Abuse Material

A person will have committed a Commonwealth offence if, by using a carriage service, they:

• access material that is child abuse material;
• transmit material to themselves that is child abuse material;
• transmit, make available, publish, or distribute material that is child abuse material;
• advertise or promote material that is child abuse material; or
• solicit material that is child abuse material.

For the Court to convict a person of this offence, the prosecutor must satisfy the Court of the following:

1. The person:
1. accessed material;
2. transmitted material;
3. made the material available;
4. published material;
5. distributed material;
6. advertised material;
7. promoted material;
8. solicited material; or
9. caused the material to be transmitted to themselves; and
10. the person intended to do that thing;
2. The person used a carriage service; and
3. The material was child abuse material.

It is important to note the fault element for point 3 is recklessness. The law regards a person to be “reckless” concerning a circumstance if:

he or she is aware that there is a substantial risk that the circumstances exist or will exist; and having regard to that circumstance, it is unjustifiable to take the risk”.

See s.5.4, Criminal Code Act 1995 (Cth)

The maximum penalty for this offence is 15 years imprisonment.

Defences to Use of a Carriage Service for Child Abuse Material

The legislation prescribes several defences for using a carriage service for CEM.

It is important to note that the evidentiary burden is on the defendant (accused) to:

• raise a defence; and
• satisfy the Court that the defence should apply.

The legislation provides that a person is not criminally responsible if:

1. Their conduct is for a public benefit; or
2. Their conduct occurred whilst the person was:
1. a law enforcement officer; or
2. an intelligence or security officer;
acting in the course of their duties and the conduct was reasonable for the performance of that duty.

A defendant can also run a defence to the charge on a factual basis. That is, that they did not commit the acts alleged to have occurred.

Public benefit is a determination of fact made by the Court. The motives of the person are irrelevant. A person’s conduct will fall into this category if it is necessary for or for assistance in:

• enforcing a law;
• monitoring compliance with, or investigating the contravention of, a law;
• the administration of justice (including within and outside Australia); or
• conducting:
• scientific;
• medical; or
• educational;
research that the AFP Minister has approved in writing for the purposes prescribed.

Use of A Carriage Service To “Groom” Persons Under 16 Years of Age

The Commonwealth Criminal code also prescribes offences about interactions between people online. These are for persons over the age of 18 who use a carriage service to “groom” a person under the age of 16.

The Code provides that a person (i.e., the sender) will have committed an offence if:

• the sender uses a carriage service to send a communication to another person (i.e., the recipient); and
• the sender did so with the intent to make it easier to procure the recipient to either:
  • engage in sexual activity with the sender; or
  • engage in sexual activity with a third person (i.e., a participant) who the sender believes is at least 18 years of age; or
  • engage in sexual activity with another person with the intent that it will take place in the presence of:
    • the sender; or
    • a participant who the sender believes is at least 18 years of age; and
• the recipient is someone who the sender believes to be under 16 years of age.

See s.474.27, Criminal Code 1995 (Cth).

The principle of absolute liability applies to the last point. That is, the element of the offence that the recipient is under 16 years of age. What this means is that a defence of “mistake of fact” is not available for that element of the offence.

A person can be guilty of this offence even where:

• it would have been impossible for any sexual activity to take place; or
• the recipient is a fictitious person represented to the sender as a real person.

The maximum penalty for this offence is 15 years imprisonment.

Defences to Use of a Carriage Service To “Groom” Persons Under 16 Years of Age

The Commonwealth Code sets out several defences to a charge of “using a carriage service’”. The availability of any defences is dependant on the circumstances of each case. Generally, it is a defence for the defendant to prove that, at the time of the offence, the defendant believed:

• that the child (recipient) was at least 16 years of age; or
• that the participant was under 18 years of age.

You should note, the onus of proof (i.e., burden) is on a defendant (i.e., accused) to establish that the defence applies. A Judge may also consider, if the defendant held such a belief, whether the belief was reasonable.

Further, any evidence represented to the sender that the recipient was:

• under a particular age;
• of a particular age;
• at least a particular age; or
• over a particular age;

in the absence of evidence to the contrary, proves that the sender believed the person to be:

• under;
• of;
• at least; or
• over;

that age.

In determining how old a person is, or was at a particular time, the jury or court can take into regard:

• the person’s appearance;
• medical or other scientific opinions; and/or
• a document that is, or appears to be:
• an official record; or
• a medical record;
from a country outside Australia (or a copy of such a record).

Penalties

In Queensland, the Penalties and Sentences Act prescribes principles for sentencing offenders. These include that:

1. The Court should impose a penalty of imprisonment as a last resort; and
2. A sentence involving the offender staying in the community is the preferred outcome.

Commonwealth legislation also restricts sentences of imprisonment to a “last resort”. Case law, however, shows a non-custodial sentence is an exception for CEM-related offences. See Kenworthy v The Queen [No 2] [2016] WASCA 207 at [158] to [180]; see also R v De Leeuw [2015] NSWCCA 183 where the Court held that:

“Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted (for child pornography offences)”.

For Commonwealth Offences, the Crimes Act 1914 (Cth) prescribes further considerations for sentencing. These include:

• the nature and circumstances of the offence;
• the harm that the victim has suffered; and
• whether the offender pleads guilty to the offence.

When examining the seriousness of an offence, the Courts will consider:

• the nature and content of the material;
• the number of images or items possessed;
• whether the conduct was for the sale or further distribution of that material; and
• whether the offender will profit from the offence.

See Director of Public Prosecutions (DPP) v D’Alessandro [2010] VSCA 60.

The Criminal Code also prescribes that the Court must consider:

• the age and maturity of the victim;
• the number of people involved in the offence; and
• whether the victim was under 10 years of age.

The last point being a “circumstance of aggravation”. This will raise the seriousness of the offending.

In all cases involving:

• child pornography;
• child exploitation material; and
• child abuse material;

the principles of general deterrence must always be a paramount consideration when sentencing. See R v Gent (2005) 162 A Crim R 29.

There is no mandatory penalty of imprisonment for CEM offences. The appropriate penalty will vary to reflect the circumstances of each case. For this reason, penalties can range from non-custodial orders to periods of imprisonment.

The legal representation you engage can significantly impact the outcome. You need a skilled in Court advocate as well as lawyers to assist you to properly prepare prior to Court. We will assist you to engage with other legal and medical professionals so that you get the best result. Our lawyers have experience working with criminal barristers and psychologists experienced in Court. This means you’ll know you have a complete expert team looking after you.

Consequences of A Conviction

The Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (QLD)

The purpose of the above Act is to protect the sexual safety of children and reduce reoffending.

In Queensland, a finding of guilt for the offence of:

1. Use of a Carriage Service for Child Abuse Material; or
2. Using a Carriage Service to Groom Persons under 16 Years of Age;

will result in the offender being a “reportable offender” under this Act.

Once the Act deems a person to be a reportable offender, they:

• are placed onto a register; and
• will be subject to ongoing requirements.

You will first receive a “notice of Reportable Offender’s Reporting Obligation”. The first requirement will be to report to a police station within 7 days of receiving this notice.

Ongoing requirements can then include, among other things:

• reporting each month; and
• the requirement to disclose any contact between the person and a child to police within 24 hours.

It is an offence to breach any of the “reportable offender” conditions imposed on a person. Any further offences committed during this time may also carry more significant penalties.

We recommend that you contact Aitken Whyte Lawyers to get immediate assistance if:

• the police ask to speak to you about an investigation or allegation;
• you need to appear before the Court; or
• a friend or family member is in custody pending finalisation of their charges.

For charges outside Queensland, you should seek advice about that State or Territory. Aitken Whyte Lawyers can provide you with investigation-stage advice into any Commonwealth Offences. This includes offences inside or outside of Queensland, as well as extra-territorial offences.

Focused on Results

It is important you have experienced lawyers when dealing with criminal charges. Even more so for serious offences, such as sexual offences against children.

If the police have contacted you, speak to one of our Brisbane Criminal Defence lawyers. Your rights are valuable and our Brisbane lawyers will work to protect these.

Aitken Whyte Lawyers Brisbane are focused on results. Our solicitors can assist you with all criminal and police investigation matters. Call one of our Brisbane criminal lawyers today 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