Involving a Child in the Production of Child Abuse Material

Which court will the case be heard in?

This matter would be heard in the Supreme Court.

Examples of Involving a Child in the Production of Child Abuse Material

• Police pull over a suspicious car and find that there is child that is unknown to the driver in the car. They also discover hidden cameras in the car.
• A person films sexualised videos of their own children at the request of a person on an internet chat room.
• A person is discovered to be grooming a child by concealing their identity. Police discover it through IP address identification. They execute a search warrant and discover home-made child abuse material.

Legislation: What is the legal definition of Involving a Child in the Production of Child Abuse Material?

This offence is governed by section 51B of the Crimes Act 1958:

Involving a Child in the Production of Child Abuse Material

1. A person (A) commits an offence if—
   1. A intentionally involves another person (B) in the production of material; and
   2. B is a child; and
   3. A knows that B is, or probably is, a child; and
   4. the material is child abuse material; and
   5. A knows that the material is, or probably is, child abuse material.
2. A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).
3. For the purposes of subsection (1), the ways in which A involves B in the production of material may include—
   1. inviting or encouraging B to be involved, or offering B to be involved, in the production of the material; or
   2. causing or allowing B to be involved in the production of the material; or
   3. using B in the production of the material.¹

Elements of the offence

For this charge to be proven, the following elements must be clearly established before the court:

• the accused intentionally involved a person in the production of a material
• the person was a child
• the accused knew that the person was, or probably was, a child
• the material was a child abuse material
• the accused knew that the material was, or probably was, a child abuse material

Failure to prove any of these elements will mean that the accused is not guilty of the charge.

“Have you been accused of Involving a Child in the Production of Child Abuse Material?”

Defences

Defences that are often run in relation to these charges are primarily factual and identification disputes, honest and reasonable mistake of belief, and also mental impairment. Other defences may also be considered depending on other circumstances surrounding the case.

Our client was charged with Possess and Make Child Pornography. He was accused of taking photos of his daughter while being bathed by his partner while they were going through a separation. On appeal in the County Court, our client was found not guilty as the Judge decided his partner had motive to lie and was not a credible witness.

Questions in cases like this

• Would a reasonable person find the material offensive in the circumstances?
• Was there a legitimate reason for engaging with a child, such as a project with artistic merit?
• Was there a child involved and was it child abuse material?

Maximum penalty for section 51B of the Crimes Act 1958

If proven guilty, an accused may be sentenced to level 5 imprisonment (10 years maximum).

Sentencing

The offence of Involving a Child in the Production of Child Abuse Material is aggravated because it involves the exploitation of children. Accordingly, if you plead guilty to Involving a Child in the Production of Child Abuse Material, you will most likely receive a prison sentence. The aim of the Court is to stop people from using the internet to transmit content of children in sexually vulnerable positions Cooper v The Queen [2012] VSCA 32.

You can reduce your penalty by preparing for your plea well in advance of our plea hearing by:

• Demonstrating genuine remorse,
• Obtaining an expert report which explains the cause for your offending,
• Undergoing offence specific treatment, or
• Preparing properly considered plea submissions which explain your personal circumstances.

You want to be able to show the Court that you have implemented supports to make sure this offending does not occur again.


_{[1] Australian legal Information Institute. “Crimes Act 1958 – Section 51B: Involving a Child in the Production of Child Abuse Material.” Austlii.edu.au. http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s51b.html (accessed June 18, 2020).}