Possession of Child Pornography

Possession of child pornography 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 pornography 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.

Child pornography is not limited to photographs or films, it also includes the possession of a publication or of a computer game that shows a minor engaging in sexual activity or depicts a minor in an indecent sexual manner or context. A minor in relation to this charge is a person under the age of 18.

People charged in child pornography 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.

This offence is governed by section 70 of the Crimes Act 1958 (‘the Act’).

Jurisdictional limits

Possession of child pornography is an indictable offence that carries a significant penalty. The offence carries a 5-year term of imprisonment as the highest possible sentence. More often than not there are multiple charges on a brief of child pornography depending on when and where the pornographic material is downloaded and stored. The seriousness of the offending, which is determined in part by the number of images and the categories of pornography, will determine which jurisdiction will hear the case. For instance, a small possession of child pornography matter where an accused has a couple of images on his or her phone may be heard in the Magistrates’ Court. A person who possesses thousands of images, videos and computer games of child pornography is more likely to have their matters dealt with in the higher, County Court.

It is also dependent on whether the offence comes under this section of the Act, or if the alleged offending comes under a Commonwealth criminal offence.

The Elements: Possession of Child Pornography

  • The accused knowingly possessed a film, photograph, publication or computer game;
  • The film, photograph, publication or computer game describes or depicts a person:
    1. Engaging in sexual activity; or
    2. Depicted in an indecent sexual manner or context; and
  • The person described or depicted in that way is, or appears to be, a minor.

We will look at each element in detail:

The accused knowingly possessed a film, photograph, publication or computer game

The term “knowingly” possess has not yet been determined precisely in Victoria.

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.

The conduct element

This requires the Prosecution to prove that the accused had physical custody or control over the pornographic material.1 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.2

The 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.3 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.4

The film, photograph, publication or computer game describes or depicts a person:

  1. Engaging in sexual activity; or
  2. Depicted in an indecent sexual manner or context

Section 67A of the Act requires the film, photograph, publication or computer game to depict a person engaging in sexual activity OR depicted in an indecent sexual manner or context.

The test of indecency has been variously stated as whether the behaviour was unbecoming or offensive to common propriety,5 an affront to modesty,6 or an act which right-minded persons would consider to be contrary to community standards of decency.7 It is necessary to apply community standards rather than the standards of any particular member of the jury. The test of indecency has remained broad because ‘indecent acts are as various as the human imagination’.8

In R v Harkin (1989)9 the court found that there needs to be a sexual connotation for an act to be indecent. However even where no objective sexual connotation arises from the act, if the offender’s purpose was sexual gratification, his or her intent may give the act the quality of indecency if the act accompanied by that intent offends community standards.10 The context and/or purpose of the act can determine whether an act is indecent. For instance, possession of a photograph of a naked child required for legitimate medical purpose may not be indecent, however if that photograph was taken by the offender for sexual gratification (i.e. a prurient purpose), the photograph would be indecent.11

The person described or depicted in that way is, or appears to be, a minor.

Under this element, the person described or depicted in the sexual activity or indecent sexual manner is or appears to be a minor.

The age requirement for this section varies, depending on when the offence of Possession of Child Pornography is alleged to have been committed:

  1. For offences alleged to have been committed on or after 18 May 2004, the person depicted or described in the relevant way must be under the age of 18 (Crimes Act 1958 s67A).
  2. For offences alleged to have been committed prior to 18 May 2004, the person depicted or described in the relevant way must be under the age of 16 (Justice Legislation (Sexual Offences and Bail) Act 2004 s4).

Where the prosecution relies on the victim’s “apparent age”, this means that the jury must be satisfied, beyond reasonable doubt, that the accused appears to be a minor.12

In a trial, the questions a judge will ask the jury to consider are:

  1. Did the accused knowingly possess a [film/ photograph/ publication/ computer game]?
    • 1.1 Is the item in question a [film/ photograph/ publication/ computer game]?
      If yes, then go to 1.2.
      If no, then the accused is not guilty of possession of child pornography.
    • 1.2 Did the accused have physical custody or control over that [film/ photograph/ publication/ computer game]?
      If yes, then go to 1.3.
      If no, then the accused is not guilty of possession of child pornography.
    • 1.3 Did the accused intend to have custody or exercise control over that [film/ photograph/ publication/ computer game]?
      If yes, then go to 1.4.
      If no, then the accused is not guilty of possession of child pornography.
    • 1.4 Did the accused know that the [film/ photograph/ publication/ computer game] contained child pornography, or was the accused aware that that was likely?
      • 1.4.1 Did the accused know that the [film/ photograph/ publication/ computer game] described or depicted someone who was under 18, or who appeared to be under 18, engaging in sexual activity?
        If Yes, then go to 2.1
        If No, then go to 1.4.2.
      • 1.4.2 Was the accused aware that it was likely that the [film/ photograph/ publication/ computer game] described or depicted someone who was under 16/18, or who appeared to be under 16/18, engaging in sexual activity?
        If Yes, then go to 2.1
        If No, then go to 1.4.3.
      • 1.4.3 Did the accused know that the [film/ photograph/ publication/ computer game] depicted someone who was under 16/18, or who appeared to be under 16/18, in an indecent sexual manner or context?
        If Yes, then go to 2.1
        If No, then go to 1.4.4.
      • 1.4.4 Was the accused aware that it was likely that the [film/ photograph/ publication/ computer game] depicted someone who was under 16/18, or who appeared to be under 16/18, in an indecent sexual manner or context?
        If Yes, then go to 2.1
        If No, then the accused is not guilty of possession of child pornography.

Possible Defences to Possession of Child Pornography

Section 70(2) of the Act describes five defences to this charge as follows:

  1. Classification by the Office of Film and Literature Classification
    A person that possesses a film, photograph contained in a publication or a computer game which, at the time of the alleged offence was, or would, if classified by the Office of Film and Literature Classification as being other than RC, [2] X or X 18+, has a defence to possessing such material.13
     
  2. Artistic merit or genuine medical, legal, scientific or educational purposes
    It is a defence to the charge if the defence can prove on the balance of probabilities that the film, photograph, publication or computer game:

    1. Possesses artistic merit; or
    2. Is for a genuine medical, legal, scientific or educational purpose.14
       

    For material to possess artistic merit, it must possess a quality which gives it worth or value according to the standards of art.

    The defence of artistic merit does not apply if the prosecution proves that the person depicted in the pornography was actually under the age of 18 as opposed to simply appearing to be under 18.15 If the subject of the charge is a fictitious person, age is not a factor.16

    For an act to have a genuine purpose, the purpose alleged by the actor must be the actual purpose behind the act. Where an act is motivated by several purposes, the prevailing purpose must be a medical, legal, scientific or educational purpose.17

  3. Belief on reasonable grounds that the minor was 18 or older; or the accused was married to the minor
    It is a defence to a charge of Possession of Child Pornography under this section if the defence can prove on the balance of probabilities that the accused believed on reasonable grounds that:

    • The minor was aged 18 years or older; or
    • The accused was married to the minor.18

    For there to be reasonable grounds for a state of mind, there must exist facts which are sufficient to bring that state of mind in a reasonable person.

  4. The accused was not more than 2 years older than the minor
    If the accused was not more than 2 years older than the minor was or appeared to be, the accused may have a defence if:

    • The accused personally made the film or took the photograph; or
    • The accused was given the film or photograph by the minor involved.

    The accused will have a defence if he or she can prove on the balance of probabilities that when he or she made the film or took the photograph, or was given the film or photograph, the accused was not more than 2 years older than the minor was or appeared to be.19

  5. The accused was one of the minors depicted.
    If the minor or one of the minors in the film is the accused, this is a defence to a charge of possession of child pornography.20

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.

Sentencing Outcomes in the Magistrates’ Court

The Sentencing Advisory Council has released sentencing statistics for the sentencing of possession of child pornography matters in the Magistrates’ Court between July 2011 to June 2014.

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.

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

Check out some of the criminal cases we’ve defended in court involving the charge of Possession of Child Pornography:



[1]He Kaw Teh v R (1985) 157 CLR 523.
[2]R v Maio [1989] VR 281; R v Mateiasevici [1999] VSCA 120.
[3]R v Wescott Vic CC 26/5/2005; R v Bowden [2000] 2 All ER 418; R v Atkins [2000] 2 Cr App R 248; R v Smith [2003] 1 Cr App R 13; DPP v Kear [2006] NSWSC 1145 Criminal Charge Book, 7.11.5.3.1 – Bench notes: Possession of Child Pornography (8 December 2014) Judicial College of Victoria: <http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#19068.htm>.
[4]R v Wescott Vic CC 26/5/2005.
[5]R v Harkin (1989) 38 A Crim R 296.
[6]Crowe v Graham (1968) 121 CLR 375.
[7]DPP v Scott [2004] VSC 129; Curtis v The Queen [2011] VSCA 102.
[8]R v Coffey (2003) 6 VR 543 at 550.
[9]A Crim R 296.
[10]S L J v The Queen [2013] VSCA 193 at 23 per Redlich JA.
[11]R v EG [2002] ACTSC 85; R v Court [1989] AC 28.
[12]Above n 4.
[13]Section 70(2)(a) of the Act.
[14]Section 70(2)(b) of the Act.
[15]Section 70(3) of the Act.
[16]Walls R Vic CC 14/07/2003.
[17]Catch the Fire Ministries v Islamic Council of Victoria [2006] VSCA 284.
[18]Section 70(2)(c) of the Act.
[19]Section 70(2)(d) of the Act.
[20]Section 70(2)(e) of the Act.