Production, dissemination or possession of child abuse material – s 91H Crimes act.

• Production: This is to film, photograph or make child abuse material (including altered images) as defined above. It also captures entering into any type of agreement to do so.
• Dissemination: This is to ‘send, supply, exhibit, transmit or communicate’ child abuse material to another person, or ‘make it available for access by other person.’ It also captures entering into any type of agreement to do so.
• Possession: This is being in the possession or control of recorded data on a computer or data storage device; and control of data on a computer held by another person in any jurisdiction.

The maximum penalty for this offence is:

• imprisonment for 10 years.

Please note that these penalties are reserved for the most serious cases only.

This option is recommended only where you accept that:

• Possession: You had possession of child abuse material; or
• Disseminate: You disseminated child abuse material; or
• Produce: You produced child abuse material.

A plea of guilty at the first available opportunity entitles you to a maximum sentencing discount of 25 per cent. It demonstrates to the court that you have accepted responsibility for your actions.

What possible outcomes exist?

• A fine
  • This may be up to $1,100.
•  A non-conviction via a section 10 – asking the court for leniency
  • Leniency is where the court has found you guilty, but has exercised a discretion not to convict you. Therefore, you will avoid:
    • a fine or a penalty.
    • a conviction
• Conditional release order “CRO” (with or without conviction)
  • This is usually subject to a period of good behaviour.
  • If an offence is committed during the period of the order, a court may resentence you for the offence committed.
• Community Corrections Orders (“CCO”)
  • A court may exercise this option when aggravating circumstances exist. An example of an aggravating circumstance includes a repeat offence.
  • An example of a CCO is performing service within the community.
• Intensive Corrections Order (“ICO”)
  • This is where a term of imprisonment can be served in the community.
• Full-time imprisonment
  • Served in a correctional facility.

How will the court assess the objective seriousness of the production, dissemination, or possession of child abuse material?

In Minehan v R (2010) 201 A Crim R 243 at [94], the Court of Criminal Appeal identified the following factors as relevant:

1. Whether actual children were used in the creation of the material.
2.  The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
4. The number of images or items of material — in a case of possession, the number of different children depicted.
5. In a case of possession, the offender’s purpose, whether for personal use, sale or dissemination.
6. In a case of dissemination  the number of persons to whom the material was transmitted.
7. Whether any payment or other material benefit was made.
8. The proximity of the offender’s activities to those responsible for bringing the material into existence.
9. The degree of planning, organisation or sophistication.
10. Whether the offender acted alone or in a collaborative network.
11. Any risk of the material being seen or acquired by vulnerable persons, inc. children.
12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
13. Any other aggravating features as noted in s 21A(2) or (3) Crimes (Sentencing Procedure) Act or s 16A Crimes Act 1914 (Commonwealth offences) bearing upon the objective seriousness of the offence.

To prove this charge, the Prosecution must establish, beyond a reasonable doubt that:

• Possession: You had possession of child abuse material; or
• Disseminate: You disseminated child abuse material; or
• Produce: You produced child abuse material.

If the Prosecution cannot prove the relevant elements beyond reasonable doubt, then the court must find you not guilty.

Defences:

• Ignorance
  • The defendant did not know, and could not reasonably be expected to have known, that he or she produced, or disseminated or possessed child abuse material.
• Disposal (possession offence only)
  • The defendant took all reasonable steps to get dispose of unsolicited child abuse material as soon as he or she became aware of the nature of the material.
• Public Benefit
  • The material was for a public benefit and did not extend beyond what was of public benefit. (ie. the administration of justice)
• Approved research
  • This is scientific, medical or educational research that has been approved by the Attorney General in writing.
• Duress or necessity
  • Another person threatened or coerced you into the child abuse activity.
• The conduct falls under the section 91HAA exception which provides that a person does not commit an offence under section 91H if:

1. the possession of the material occurred when the accused person was under the age of 18 years; and
2. a reasonable person would consider the possession of the material as acceptable, having regard to each of the following where relevant:
   1. the nature and content of the material,
   2. the circumstances in which the material was produced and came into the possession of the accused person,
   3. the age, intellectual capacity, vulnerability or other relevant circumstances of the child depicted in the material,
   4. the age, intellectual capacity, vulnerability or other relevant circumstances of the accused person when he or she first came into possession of the material; and when it first came to the attention of a police officer,
   5. the relationship between the accused person and the child depicted in the material.