There are a broad range of offences, both State and Commonwealth, which apply to:
The State offences in Queensland relate in general to offences involving the:
Commonwealth offences involve the use of a “carriage or postal service”.
Police can charge offenders with both:
depending on the circumstances of each offence.
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:
It also includes any material that depicts:
See s.473.1, Criminal Code Act 1995 (Cth).
Throughout this article, the phrases:
are interchangeable. All references are to material that is generally regarded as “child pornography”.
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:
Child Abuse and Child Exploitation Material offences capture a broad range of conduct.
Conduct can range from:
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.
A person will have committed a Commonwealth offence if, by using a carriage service, they:
For the Court to convict a person of this offence, the prosecutor must satisfy the Court of the following:
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.
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:
The legislation provides that a person is not criminally responsible if:
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:
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:
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:
The maximum penalty for this offence is 15 years imprisonment.
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:
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:
in the absence of evidence to the contrary, proves that the sender believed the person to be:
In determining how old a person is, or was at a particular time, the jury or court can take into regard:
In Queensland, the Penalties and Sentences Act prescribes principles for sentencing offenders. These include that:
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]  WASCA 207 at  to ; see also R v De Leeuw  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 Offence, the Crimes Act 1914 (Cth) prescribes further considerations for sentencing. These include:
When examining the seriousness of an offence, the Courts will consider:
The Criminal Code also prescribes that the Court must consider:
The last point being a “circumstance of aggravation”. This will raise the seriousness of the offending.
In all cases involving:
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 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:
will result in the offender being a “reportable offender” under this Act.
Once the Act deems a person to be a reportable offender, they:
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:
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:
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.
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 Criminal Defence lawyers. Your rights are valuable and we 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 us today to discuss your needs.
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000