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Possession Of Child Exploitation Material – Queensland

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Possessing Child Exploitation Material – Queensland Offence

Queensland Courts hear many offences every year relating to:

• the access of child exploitation material (“CEM” or child pornography); and
• possession of CEM.

Police can prosecute the offence of possessing child exploitation material under both:

• State Law; and
• Commonwealth Law.

The Law in Queensland

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

What Is Child Exploitation Material?

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

Police Investigation of Possession of Child Exploitation Material

This offence typically arises by either:

• an informant who is known by the offender finding the material and reporting the matter to police; or
• through a search warrant executed by police.

During the execution of a search warrant, police may seize:

• laptops;
• computers;
• hard drives;
• USBs;
• phones; and
• other electronic material.

Police will conduct a forensic analysis of the material seized.

It is important to speak to a lawyer first if police:

• contact you about an investigation; or
• request that you take part in an interview.

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:

• assist you to weigh the benefits and risks of participating in a recorded interview;
• speak to police on your behalf;
• attend a police interview with you; and
• draft a written statement to disclose information you may wish to provide police.

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:

• police have contacted you; or
• you are being investigated for possession of child exploitation material.

Categorisation Of Child Exploitation Material

Once police locate CEM, they will categorise the images and videos by their “severity”.

The Oliver Scale

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 1 (no sexual activity); through to
• category 5 (sadism, bestiality, and child abuse).

Category 6 included animated and virtual images and videos.

The Interpol International Classification System

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.

Category	Material
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.

Imprisonment As Penalty for Possession Of CEM

Under QLD law, there is a general sentencing guideline that the Court must consider. This includes 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 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.

What The Court Will Consider When Sentencing

A significant factor in sentencing will be:

• the number of images and/or videos; along with
• the category of the material.

Section 9 of the Penalties and Sentences Act sets out the primary factors for the Court to consider when:

• sentencing someone for a child exploitation material offence; and
• deciding whether “exceptional circumstances” exist.

These factors include:

1. The nature of the material. This will be set out in the schedule prepared by the prosecutor and the report prepared by police. It will include the apparent age of the child and the nature of the activity shown.
2. Any relationship between the offender and the child;
3. The effect of the offence on the child;
4. The age of the child;
5. The need to protect the child or other children from the risk of re-offending;
6. The offender’s conduct regarding the material (i.e., if it was also distributed);
7. The need to deter similar behaviour by others;
8. Prospects of rehabilitation of the offender;
9. The availability of any medical or psychiatric treatment. The purpose of any treatment would be to cause the offender to behave in a way that is acceptable to the community;
10. The offender’s antecedents (i.e., their age, character, and background circumstances);
11. The offender’s remorse or lack of remorse;
12. Any medical, psychiatric, prison or another relevant report regarding the offender; and
13. Anything else about the safety of children under 16 the Court considers relevant.

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:

• a wholly suspended period of imprisonment;
• probation; and
• a fine.

Engage The Right Legal Defence Team

Engaging experienced legal representatives can lead to a much better outcome. Our lawyers will:

• assist you to undertake proper preparation before your sentence; and
• present all mitigating factors to the Court.

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.

Becoming A Reportable Offender

It is a requirement that a person is placed on the Child Protection Offender Register if they:

1. plead guilty to possession of child exploitation material; or
2. are found guilty of possessing child exploitation material after a trial.

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 Against Children

Other offences that can arise from the same or related activities include:

• making child exploitation material;
• indecent treatment of a child under 16;
• use of a carriage service for child abuse material; and
• using a carriage service to “groom” persons under 16 years of age.

Where a person has groomed or “procured” a child online for CEM, police may charge them with other offences:

• under the Queensland Criminal Code Act 1899; and/or
• under the Commonwealth Criminal Code Act 1995.

It is a Commonwealth offence to use a “carriage service” to:

• access child abuse material;
• transmit or send (including to oneself) child abuse material;
• make available, publish, or distribute child abuse material;
• advertise or promote child abuse material; or
• solicit, ask for or request child abuse material.

Police may thus also charge a person with a Commonwealth offence if the possession arose by:

• viewing videos or images online or via text message;
• copying or downloading material from the internet; or
• sending, exchanging, or soliciting material online or over the phone (including by text).

If you are facing Court for any of the above offences, contact us on 07 3229 4459 for legal advice.

Focused On Results

It is essential you have experienced solicitors when dealing with:

• offences involving children; and
• offences involving child exploitation material.

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 are focused on results. Our solicitors can assist you with all criminal matters. Call us 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