Queensland Courts hear many offences every year relating to:
Police can prosecute the offence of possessing child exploitation material under both:
In Queensland, the Criminal Code at section 228D states that:
“A person who knowingly possesses child exploitation material commits a crime.“Section 228D of the Criminal Code 1899
The maximum penalty, where there are no aggravating circumstances, is 14 years imprisonment.
This increases to 20 years imprisonment if the prosecution can prove that:
The Criminal Code defines child exploitation material, or CEM, 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 or demeaning context; or
c) being subjected to abuse, cruelty or torture.“Section 207A of the Criminal Code 1899
This offence typically arises by either:
During the execution of a search warrant, police may seize:
Police will conduct a forensic analysis of the material seized.
It is important to speak to a lawyer first if police:
You have the right not to incriminate yourself in an interview with the police. This is a critical stage of the matter and getting legal advice early is imperative. Our Brisbane lawyers can:
During an investigation, you should also be aware of receiving a “pretext call”. This is one tactic police sometimes use in investigating these types of offences.
For more information on your rights and what you should do, call us on 07 3229 4459 to speak to a lawyer if:
Once police locate CEM, they will categorise the images and videos by their “severity”.
Queensland previously used a method called the “Oliver Scale”. This categorised images and videos containing child exploitation material into 6 categories. The categories ranged from:
Category 6 included animated and virtual images and videos.
Recently, Queensland adopted an international categorisation scheme to replace the Oliver Scale. The INTERPOL International Classification System is already used in many other countries and jurisdictions.
The INTERPOL International Classification System is a 4-category system used to differentiate images.
|INTERPOL Baseline – Category 1||Depicts real prepubescent children (approximately under the age of 13) and: |
a) the child is involved in a sexual act; or
b) the child is witnessing a sexual act; or
c) the material is concentrated on the child’s anal or genital region.
|Jurisdictionally defined CEM not classified as Baseline – Category 2||Files that are illegal, either by way of age or content, that do not fit into Category 1. For example, this may include children under 16 engaged in sexual activity. It also includes written or animated CEM.|
|Related non-illegal files – Category 3||An image that forms part of a CEM series but the standalone image is not illegal. It may assist investigations into a Category 1 or 2 image by containing: |
a) important clues; or
b) identifying information.
|Ignorable – Category 4||All other legal material that does not fit into categories 1 – 3.|
Under QLD law, there is a general sentencing guideline that the Court must consider. This includes that:
This principle, however, does not apply to the offence of possessing CEM. Further, in 2020 amendments to the Penalties and Sentences Act state that for a CEM offence:
“the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.” (our emphasis)Section 9 of the Penalties and Sentences Act 1992
What constitutes “exceptional circumstances” will differ from case to case. It is at the decision and individual discretion of the presiding sentencing Judge.
A significant factor in sentencing will be:
Section 9 of the Penalties and Sentences Act sets out the primary factors for the Court to consider when:
These factors include:
In the end, the penalty received will depend on the individual circumstances of each case. If the defence can demonstrate “exceptional circumstances”, non-custodial sentences can include:
Engaging experienced legal representatives can lead to a much better outcome. Our lawyers will:
If you intend to proceed to trial, we have significant trial experience.
You should know your options when appearing before the Court. Call our Brisbane criminal lawyers on 07 3229 4459 for experienced legal advice. We will fight for and defend your rights.
It is a requirement that a person is placed on the Child Protection Offender Register if they:
Placement on the Child Protection Offender Registry imposes certain stipulations on a person. A convicted person must keep the police informed of their details for a period after release. Failing to comply with this is an offence in and of itself.
Our Brisbane lawyers can represent you for breach of a reportable offender condition.
Other offences that can arise from the same or related activities include:
Where a person has groomed or “procured” a child online for CEM, police may charge them with other offences:
It is a Commonwealth offence to use a “carriage service” to:
Police may thus also charge a person with a Commonwealth offence if the possession arose by:
If you are facing Court for any of the above offences, contact us on 07 3229 4459 for legal advice.
It is essential you have experienced solicitors when dealing with:
Given the penalties the Courts can impose, it is important to seek legal advice. Contact us if the police have charged you with possessing child exploitation material.
We can provide you with advice on your options and represent you in Court.
If you would like to speak with our criminal defence team, call us on 07 3229 4459.
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000