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Possession of Child Abuse Material

– section 51G of the Crimes Act 1958

Child on MagazinePossession of Child Abuse Material is an extremely serious charge which is becoming more and more prevalent in the community. With the developments in technology and the accessibility of information from anywhere at any time, child abuse material is easy to access through the internet and file-share software that moves folders from one computer to another, which in turn have led to a law that is easy to fall foul of.People charged in child abuse material cases are typically people who have never been before the Courts previously and lead otherwise good lives. The key to explaining this conduct to the Court, on a plea of guilty, is by providing detailed reports from a forensic psychologist to explain the conduct. An explanation is not an excuse, but often there are underlying reasons for compulsions that help a Magistrate or Judge understand it more clearly.

The offence of ‘Possessing Child Abuse Material’ commenced operation on 1 July 2017. The offence was previously ‘Possession of Child Pornography’.

Examples of Possession of child abuse material
  • You download a large amount of pornographic images from a website onto your computer. Some of the images depict 16 and 17 year olds engaging in sexual activity.
Questions in cases like this
  • Did you know that you were in possession of the child abuse material?
  • Did you have access to the material?
  • Was the material actually child abuse material?
What are some of the possible defences to Possession of child abuse material?

A mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as offensive is not a defence to this offence.1

The defences which apply to this offence are contained in 51L, 51N, 51O, 51P, 51Q, 51R and 51T of the Crimes Act 1958.

Defence of artistic merit or public benefit – Section 51L

  1. It is a defence to a charge for a child abuse material offence if:
    1. the material-
      1. was not produced with the involvement of a person who was, at the time it was produced, under the age of 18 years; and
      2. possesses artistic merit; or
    2. the material is of public benefit.

For further details, see section 51L.

Defence applying to children – Section 51N

  1. It is a defence to a charge for an offence against section 51G(1) if:
    1. A is a child; and
    2. the child abuse material is an image; and
    3. the image depicts one or more persons (whether or not it depicts A); and
    4. the image—
      1. does not depict an act that is a criminal offence punishable by imprisonment; or
      2. depicts an act that is a criminal offence punishable by imprisonment but A reasonably believes that it does not; and
    5. at the time of the conduct constituting the offence—
      1. A was not more than 2 years older than the youngest child depicted in the image; or
      2. A reasonably believed that they were not more than 2 years older than the youngest child depicted in the image.

For further details, see section 51N.

Defence – image of oneself – Section 51O

  1. It is a defence to a charge for an offence against section 51G(1) if—
    1. the child abuse material is an image; and
    2. the image depicts A as a child; and
    3. the image does not depict A committing a criminal offence punishable by imprisonment; and
    4. A does not distribute the image to any other person.

For further details, see section 51O.

Call Doogue + GeorgeDefence – accused not more than 2 years older than 16 or 17 year old child and acts with child’s consent – Section 51P

  1. It is a defence to a charge for an offence against section 51G(1) if—
    1. the child abuse material is an image; and
    2. at the time at which the image was first made, the child (B) whose depiction in the image makes it child abuse material—
      1. was aged 16 or 17 years; and
      2. was not, or had not been, under A’s care, supervision or authority; and
    3. the image does not depict an act that is a criminal offence punishable by imprisonment; and
    4. A does not distribute the image to any person other than B; and
    5. A is not more than 2 years older than B; and
    6. at the time of the conduct constituting the offence, A reasonably believed that B consented to that conduct.

For further details, see section 51P.

Defence – marriage or domestic partnership – Section 51Q

  1. It is a defence to a charge for an offence against section 51G(1) if—
    1. the child abuse material is an image; and
    2. the image is child abuse material because of its depiction of another person (B); and
    3. the image does not depict a criminal offence punishable by imprisonment; and
    4. A does not distribute the image to any person other than B; and
    5. at the time at which the image was first made—
      1. B was 16 or 17 years of age; and
      2. either A and B were married to each other and the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B’s domestic partner and was no more than 2 years older than B; and
      3. where A was B’s domestic partner, if B was under A’s care, supervision or authority, the domestic partnership commenced before B came under A’s care, supervision or authority; and
    6. at the time of the conduct constituting the offence—
      1. either A and B were married to each other and the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B’s domestic partner and was no more than 2 years older than B; and
      2. A reasonably believed that B consented to the conduct constituting the offence.

For further details, see section 51Q.

Defence – reasonable belief in marriage or domestic partnership – Section 51R

  1. It is a defence to a charge for an offence against section 51G(1) if—
    1. the child abuse material is an image; and
    2. the image is child abuse material because of its depiction of another person (B); and
    3. the image does not depict a criminal offence punishable by imprisonment; and
    4. A does not distribute the image to any person other than B; and
    5. at the time at which the image was first made, A reasonably believed that—
      1. B was 16 or 17 years of age; and
      2. either A and B were married to each other and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B’s domestic partner and was no more than 2 years older than B; and
      3. where A was B’s domestic partner, if B was under A’s care, supervision or authority, the domestic partnership commenced before B came under A’s care, supervision or authority; and
    6. at the time of the conduct constituting the offence, A reasonably believed that—
      1. either A and B were married to each other and that the marriage was recognised as valid under the Marriage Act 1961 of the Commonwealth or A was B’s domestic partner and was no more than 2 years older than B; and
      2. B consented to that conduct.

For further details, see section 51R.

Defence – unsolicited possession – Section 51T

It is a defence to a charge for an offence against section 51G(1) for A to prove on the balance of probabilities that—

  1. A did not intentionally come into possession of child abuse material; and
  2. on becoming aware of having come into possession of child abuse material, A, as soon as it was practicable to do so, took all reasonable steps in the circumstances to cease possessing the material.

For further details, see section 51T.

Aside from the above mentioned defences, general defences can include but are not limited to sudden or extraordinary emergency, involuntary act, and lack of intent. Other defences such as a factual dispute, wrongful identification, mental impairment, necessity or duress may also apply.

Maximum penalty and court that deals with this charge

Imprisonment
This charge may lead to a level 5 imprisonment (10 years maximum) if the accused is proven guilty. It will usually be dealt with in the County Court.

What is the legal definition of Possession of child abuse material?

A person commits an offence if they knowingly possess child abuse material.

Legislation

The law for this charge can be found on section 51G of the Crimes Act 1958.

Elements of the offence

For an accused to be proven guilty of the offence of Possession of Child Abuse Material, the prosecution must prove the following beyond reasonable doubt:

  1. The person knowingly…
  2. Was in possession of…
  3. Child abuse material

1) Did the accused ‘knowingly’ possess the material?
It is necessary for the accused to have knowingly possessed the child abuse material. The term “knowingly” possess has not yet been determined precisely in Victoria. Using common sense, it requires some knowledge on the part of the accused. Therefore, mere advertence would not be sufficient.

“Can they prove you knowingly possessed the child abuse material?”

2) Was the accused actually in possession of the material?
Possession is not defined in the Act and takes the form of the common law definition. Common law possession involves the physical control with an intent to possess.

Conduct element: This requires the Prosecution to prove that the accused had physical custody or control over the pornographic material. A person does not need to be carrying the material on their person to satisfy this element. They do however have to have custody or control over it. It is not uncommon for material to be forgotten about and found to be in a person’s room whilst a warrant is executed for unrelated matter. In the first instance, a bedroom is a location where a person has manual custody and in the second. Once a person has possession of an item, that possession remains alive until the item possessed is disposed of. This is said to be in their custody and within their control.

Mental element: A person will generally not have an intention to possess material that is automatically downloaded from the Internet onto his or her computer. Some webpages on the internet may expose a person to this type of downloading behaviour. A person will therefore generally not be guilty of possession of child pornography if s/he simply browses Internet sites which contain pornographic images. In such a situation an intention to possess is absent.
Note that in cases where child abuse material is electronic, possession means access to the electronic material regardless of whether the accused had physical possession of said material.

3) Was the material ‘child abuse material’?
‘Child abuse material’ means material that:

  • depicts or describes—
    • a person who is, or who appears or is implied to be, a child—
      • As a victim of torture, cruelty or physical abuse (whether or not the torture, cruelty or abuse is sexual); or
      • As a victim of sexual abuse; or
      • Engaged in, or apparently engaging in, a sexual pose or sexual activity (whether or not in the presence of another person); or
      • In the presence of another person who is engaged in, or apparently engaged in, a sexual pose or sexual activity; or
        • the genital or anal region of a person who is, or who appears or is implied to be, a child; or
        • the breast area of a person who is, or who appears or is implied to be, a female child; and
      • reasonable persons would regard as being, in the circumstances, offensive
Geographical considerations

It is irrelevant if the electronic child abuse material was outside the state of Victoria as long as the accused was in Victoria at the time the offending took place. The opposite also does not matter where the accused was outside Victoria as long as the electronic child abuse material was in Victoria at the time the offence was committed.

Sentencing in the Magistrates’ Court

The Sentencing Advisory Council released sentencing statistics for the sentencing of possession of child pornography matters in the Magistrates’ Court between July 2011 and June 2014. Note that section 51G used to be ‘possession of child pornography’.

Over the three year period:

  • 212 cases were before the Court
  • 21.2% of people sentenced received a period of imprisonment
  • 19.3% received a wholly suspended period of imprisonment
  • 2.8% received a partially suspended sentence
  • 44.8% received some form of community based order
  • 5.2% received a financial penalty

The most common length of imprisonment imposed was between 3 and 6 months with 31.1% of persons imprisoned sentenced within that range.
Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.

Sentencing in the higher courts

Higher Court
To view sentencing decisions by Victorian County Courts for child pornography and grooming offences, visit this page.

Case studies related to Possession of child abuse material

 



[1] See section 51U the Crimes Act 1958.