Distributing Child Abuse Material

If you have been charged under section 51D, get advice early. The exceptions and defences in this part of the Act are detailed and easy to miss, and which court hears your matter makes a large difference to the outcome. Call our office to arrange a conference.

Police Interview

By the time you are interviewed, police will normally have a forensic report setting out what was found and what was sent. Anything you say can be used against you. In many of these cases the fact that material passed through your account is not really in dispute. What is in dispute is what you knew about it, and that is what the interview is aimed at.

You do not have to answer questions beyond giving your name, address and date of birth. Speak to a lawyer before the interview starts. We can attend the police station with you.

Pleading Not Guilty

Section 51D has four elements, and knowledge is usually the one that decides the case.

If you instruct us to defend the charge, we will examine the brief and consider matters such as:

• Whether you can be identified as the person who distributed the material.
• Whether the material meets the definition of child abuse material in section including whether reasonable persons would regard it as offensive in the circumstances.
• Whether you knew, or believed it probably was, child abuse material.
• Whether the distribution was intentional, as opposed to automatic syncing, a shared device or an account used by somebody else.
• Whether the forensic examination of devices was properly carried out and fully disclosed.

Our firm has run hundreds of trials in the County and Supreme Courts, including matters where the case turns entirely on forensic computer evidence.

Pleading Guilty

Get advice before pleading guilty. Section 51D is not a category 1 or category 2 offence under the Sentencing Act 1991, and no mandatory minimum applies, so the full range of sentencing options remains open.

Work goes into negotiating the summary of offending and the number of charges, and into preparing the plea. That includes psychological or psychiatric reports, evidence of your background, and evidence of any treatment undertaken.

Sentencing

Sentencing outcomes in the higher courts of Victoria

Source: Sentencing Advisory Council of Victoria (SACStat), Crimes Act 1958 (Vic) s 51D(1) — 28 charges, higher courts, 1 July 2019 to 30 June 2024.

Sentencing outcomes in the Magistrates’ Court of Victoria

Source: Sentencing Advisory Council of Victoria (SACStat), Crimes Act 1958 (Vic) s 51D(1) — 60 charges, Magistrates’ Court, 1 July 2020 to 30 June 2023.

The difference between these two tables matters a great deal. In the higher courts, imprisonment and a community correction order were the only outcomes imposed, and imprisonment accounted for almost all of them. In the Magistrates’ Court, imprisonment was imposed on just over half of charges, and a third received a community correction order.

The sentence will depend on the volume of material, how it was distributed and to how many people, the nature of the material, whether you produced any of it, your prior history and your personal circumstances.

Which court will the case be heard in?

Section 51D is an indictable offence, so it can be heard in the County Court. In practice most charges are dealt with summarily in the Magistrates’ Court instead.

Examples of Distributing Child Abuse Material

• You forward a file you received to another person in a group chat, even though you did not create it and did not ask for it.
• You place files in a shared folder or file sharing program that other people can download from.
• You send a file to one person, who never opens it, the offence can still be made out.

What is the legal definition?

Under section 51D(1) of the Crimes Act 1958, A person commits this offence if they intentionally share material that is child abuse material, knowing that it is, or probably is, that kind of material.

Distributing covers more than sending something directly. Publishing it, passing it on, or simply leaving it somewhere another person can get to it all count. The prosecution does not have to prove who received it, or that anyone ever opened it. It also does not matter that the material crossed state or national borders, as long as either you or some of the material was in Victoria.

Child abuse material means material showing or describing someone under 18, or someone who appears to be, as a victim of abuse or in a sexual pose or activity, or showing certain parts of a child’s body. It must also be something reasonable people would find offensive in the circumstances.

Legislation

The legislation for this offence can be found in section 51D of the Crimes Act 1958.

Elements of the offence

The prosecution must prove each of the following beyond reasonable doubt.

1. The accused distributed material
2. The accused did so intentionally
3. The material was child abuse material within the meaning of section 51A(1)
4. The accused knew that the material was, or probably was, child abuse material

Defences

Possible defences include:

1. mistaken identity
2. a factual dispute about what was distributed, or about who distributed it
3. that the material is not child abuse material within the meaning of section 51A(1)
4. that you did not know, and did not believe it probably was, child abuse material
5. that the distribution was not intentional
6. Duress

The Act also sets out some situations where this offence is not made out, or where a defence is available.

There is an exception for police, prosecutors and justice officials doing their job in good faith, and for material that has been classified, or would be classified, as something other than Refused Classification. There is also an exception for a child who shares an image of only themselves, or an image showing a crime they were the victim of.

Defences cover material with genuine artistic merit, provided nobody under 18 was involved in making it, and material shared for a real medical, legal, scientific or educational purpose. There are also narrow defences for images of a 16 or 17 year old, broadly where the image was sent to nobody but that person, shows no criminal act, and the two of you were close in age, married or partners.

One thing will not help you. Believing the material was not offensive, however honestly and reasonably, is not a defence.

The prosecution must still prove every element beyond reasonable doubt.

You should ring us and discuss your case if you have been charged. Whether to plead guilty or not guilty has major implications for you, and the decision should be made after proper discussion with a criminal lawyer.

Questions in cases like this

• Did you send or share the material, or was it on a shared device or account?
• What did you know about what the material contained?
• How many files were involved, and how many people received them?
• How old were you, and how old is the person depicted?

Maximum penalty for section 51D of the Crimes Act 1958

Distributing Child Abuse Material (s51D of the Crimes Act 1958) carries level 5 imprisonment, a maximum of 10 years.

Other important resources

• https://www.sacstat.vic.gov.au/hc-vic/distribute-child-abuse-material-6231-51d-1-hc.html
• https://www.sacstat.vic.gov.au/mc-vic/distribute-child-abuse-material-6231-51d-1-mc.html