In Victoria there are several ways that a person can be found guilty of possession of child abuse material. The act of possession can consist of having physical photos or discs, storing digital files on an external hard drive, phone, tablet or computer or using the internet to access an online storage location where the offender is controlling the material.
Offences relating to child abuse material are very serious and can be charged under either Victorian or Commonwealth legislation. It is common for an immediate term of imprisonment to follow a finding of guilt for this sort of offending. However, non-custodial sentences are sometimes imposed where there are significant subjective circumstances that can demonstrate why an offender should not be imprisoned.
What is child abuse material?
In Victoria, the Crimes Act 1958 uses the phrase ‘child abuse material’ which includes child pornography. This change in terminology has broadened the scope of what material is covered.
‘Child abuse material’ is defined in Section 51A of the Crimes Act 1958 as material that:
- Depicts or describes
- A person who is, appears to be or is implied to be a child
- As a victim of torture, cruelty or physical abuse; or
- As a victim of sexual abuse; or
- Engaged in or apparently engaging in a sexual pose or sexual activity; or
- In the presence of another person who is or is apparently engaged in a sexual pose or sexual activity
- The genital or anal region of a person who is or who appears to be or is implied to be a child;
- The breast area of a person who is or who appears to be or is implied to be a child; and
- Reasonable persons would regard as being, in the circumstances, offensive.
In Commonwealth legislation, offences relating to this sort of material are divided into the categories of ‘child abuse material’ and ‘child pornography material’ but cover the same sort of material that is combined in the Victoria legislation’s terminology. For the purposes of both the Commonwealth and Victorian legislation, a child means a person who is under the age of 18.
What is the offence and what must be proven?
Section 51G of the Crimes Act 1958 covers the Victorian offences and specifies that a person commits an offence if they knowingly possess child abuse material. It is not necessary for someone to actually have physical possession of electronic files and may include access to material as long as the person can control the access to that material. The maximum penalty for the Victorian offence is 10 years imprisonment.
The Commonwealth offence of using a carriage service top access child pornography material is governed by Section 474.19 of the Criminal Code Act 1995. The Commonwealth legislation provides for offenders to be prosecuted for
- Accessing material; or
- Causing material to be transmitted to oneself; or
- Transmits, makes available, publishes, distributes, advertises or promotes material; or
- Solicits material.
The maximum penalty for the Commonwealth offence is 15 years imprisonment.
What if I am charged with both the Victoria and Commonwealth offences?
It is very common for someone who is apprehended with child abuse material to be charged with both the Commonwealth and Victorian offence. This is because it is common that a carriage service (ie: the internet) is used to access the material and is then downloaded on to storage on electronic devices, leading to possession of the material. However, there are subtle differences between the Victorian and Commonwealth legislation that allow for multiple charges to be pursued by Prosecutors.
The Commonwealth legislation is focused on the movement of material around the internet, through access, transmission and procurement. These offences are designed to stop the ‘market’ for child abuse material or child pornography material being circulated through the internet. The Victorian legislation is focused on possession whether physically, through storage mediums on electronic devices or exerting control in accessing an online library.
There is significant overlap between the two legislative frameworks however the courts will take the overlap into account in providing separate sentences for each charge, but they will also take in to account the principles of ‘totality and parsimony’ ie that the sentence should be no more severe than is necessary to cover the offending.
In some circumstances, it may be possible to negotiate with prosecutions for one of the charges to be withdrawn if the offender pleads guilty to the other.
What factors are taken into account if I plead guilty or am found guilty?
A sentencing Judge will take in to account both objective and subjective factors.
The objective factors a court will consider include:
- That by its very nature these sorts of offences are grave and general deterrence is of primary consideration;
- The nature and content of the material and the gravity of the sexual activity depicted (with reference to the CETS Scale as a way of categorising various images or videos);
- The number of items, images and videos possessed;
- Whether the material is possessed for sale or further distribution; and
- The length of time that the person had possess the material.
The subjective factors that are taken into account include:
- The age of an offender;
- The mental health of an offender as evidenced in psychologist reports;
- Prior good character or prior criminal history;
- Education and upbringing;
- Any other personal circumstances that are relevant.
Registration as a Sex Offender
Offences relating to child pornography are Class 2 offences under the Sex Offender Registration Act, meaning that persons found guilty of them must report their details to police and keep police informed of their contact details, employment details and other matters specified in the legislation. The period for which a person must comply with these requirements depends on the number of offences, but is often a period of 8 or 15 years, which can extend to life in extreme cases (Sex Offenders Registration Act, Section 34).
Being on the Sex Offenders Registry can have a drastic effect on a person’s life and can prohibit a person from doing certain types of employment and other activities.
What should I do if I am charged or investigated?
If you are contacted by either Victoria Police or the Australian Federal Police in relation to any of the above charges, you should contact a solicitor at the earliest opportunity. Please contact GTC Lawyers for an obligation-free consultation of your situation.
By Alex Wolf, Solicitor