Criminal Offences

Child Abuse Material

Section 91(H) of the Crimes Act 1900 (NSW) refers to the crime relating to the possession of child abuse material. In fact, Section 91(H) of the Act states that:

A person who produces, disseminates or possesses child abuse material is guilty of an offence.

In order to best understand the crime of possessing child abuse material, is it best to understand how to Crimes Act defines key factors of the crime. First and foremost, section 91FB states that:

  1. Child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances offensive:
    1. A person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
    2. A person who is, appears to be or is implied to be a child engaged in or apparently engaged In a sexual pose of sexual activity (whether or not in the presence of other persons), or
    3. A person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
    4. The private parts or a person who is, appears to be or is implied to be, a child.
  2. The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include:
    1. The standards of morality, decency and propriety generally accepted by reasonable adults, and
    2. The literary, artistic or educational merit (if any) of the material, and
    3. The journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and
    4. The general character of the material (including whether it is of a medical, legal or scientific character).
  3. Material that depicts a person or the private parts of a person includes material that depict a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or otherwise create a depiction referred to in subsection 1).

Furthermore, 91H of the Crimes Act states that:

  1. “Disseminate” child abuse material, includes
    1. send, supply, exhibit, transmit or communicate it to another person, or
    2. make it available for access by another person, or
    3. enter into any agreement or arrangement to do so.
  2. “Possess” child abuse material includes, in relation to material in the form of data, being in possession or control of data.
  3. “Produce” child abuse material includes:
  1. film, photograph, print or otherwise make child abuse material, or
  2. alter or manipulate any image for the purpose of making child abuse material, or
  3. enter into any agreement or arrangement to do so.

At Benjamin Leonardo – The Defenders, we are leading criminal lawyers based in Parramatta and Sydney. Our highly experienced solicitors have years of knowledge in criminal cases and we are proud to hold a 90% success rate on the cases that represent.

If you, or somebody you know has been charged with possession of child abuse material as per section 91FB and 91H of the Crimes Act, contact Benjamin Leonardo – The Defenders now for a FREE first consultation.

PENALTIES

As per section 91H of the Crimes Act 1900, possession of child abuse material is a serious crime with potentially significant penalties. Section 91H the Crimes Act 1900 (NSW) states that any person found guilty of possessing, producing or disseminating child abuse material is liable to imprisonment for a maximum of 10 years.

However, in NSW the Court has the ability to inflict alternative penalties in appropriate circumstances. To be eligible, the Court will consider the nature of the crime, personal character, criminal history and individual circumstances to determine whether you should receive the maximum penalty or a lesser sentence. Upon consideration, the Court may determine that less significant penalties such as Community Service Orders (CSOs), Intensive Corrections Order (ICOs), good behaviour bonds or fines may be appropriate in this instance. The Court could also impose a section 10 dismissal, whereby no conviction is recorded, however due to public distaste for such an offence, this may be unlikely. Typically, section 10 dismissals are reserved for first time offenders or minor criminal charges.

For more accurate advice in relation to the penalties that relate to your specific case should you be facing charges of possessing child abuse material, contact our expert criminal defence lawyers for a FREE first consultation.

GUILTY

In order to be found guilty of the charge relating to possessing child abuse material, the prosecution must prove that the crime was committed as per section 91H and 91FB of the Crimes Act 1900. Therefore, the prosecution must prove the following beyond a reasonable doubt:

  • That you were in possession or control of data of child abuse material, or
  • That you sent, supplied, exhibited, transmitted or communicate the child abuse material to another person, or
  • That you made child abuse material accessible by another person or persons, or
  • That you entered an agreement to disseminate child abuse material, or
  • That you produced, altered or manipulated film, photograph or print in order to make child abuse material, or
  • That you entered an agreement to produce child abuse material.

If you agree with these claims, you may enter a guilt plea. Our criminal defence lawyers can advise you if this is in your best interest. If you choose to go ahead with pleading guilty, you will then proceed to sentencing, in which you could be facing up to 10 years imprisonment.

However, with this being said, a guilty plea is often seen favourably in the judiciary system. A guilty plea often shows remorse and regret for your actions and therefore it is not uncommon to see those who have admitted guilt to receive a lesser sentence or alternative punishment for the crime. The Court will deliberate on the case facts, personal circumstances and past criminal history before deciding whether a reduced sentence or alternate punishment is appropriate in your case.

If you or somebody you know has been charged with possession of child abuse material, it is advised to contact an experienced criminal defence lawyer immediately.

As some of Sydney’s best criminal lawyers with success in defending similar cases, call us for a FREE first consultation to receive the most accurate and appropriate advice should you plead guilty.

NOT GUILTY

You also have the option to plead not guilty to the charge of possessing child abuse material. If this is the case, the prosecution team must prove beyond reasonable doubt that you did commit the offence as per section 91H of the Crimes Act 1900. If it can be proven, it is likely that you will be convicted as per the penalties listed above.

However, at Benjamin Leonardo – The Defenders, our Sydney based criminal lawyers have achieved successful results for clients in such situations. In order to avoid conviction, our criminal defence lawyers will challenge the allegations set out against you, by arguing the following defences. If we are able to successfully do this, the Court may completely dismiss the charges in which you will no longer be penalised. It may also result in less serious penalties or be downgraded to a less significant charge which is more favourable than imprisonment.

For relevant advice in relation to whether you should plead guilty or not guilty, please do not hesitate to contact our Sydney based criminal law firm for a FREE first consultation.

THE DEFENCE

There are a number of defences that our criminal defence lawyers may argue in relation to charges of possessing child abuse material. These may include:

Necessity: The defence of necessity aims to justify unlawful actions if it can be proven an individual only participated in a crime in order to protect themselves from danger from either human or natural forces. Our criminal defence lawyers will need to successfully argue that the criminal act was only undertaken in order to avoid consequences that are deemed as “irreparable evil”, and there were no other alternatives to avoid the threat. The accused must also honestly believe that they were in a situation of “imminent peril” in order for their actions to be justified in the Court.

Duress: Involves the use of harmful threats that have coerced the accused to partake in illegal activities that they would not have if the threats had not been made.

WHICH COURT?

If you are facing charges of possess child abuse material, the crime is classified as table 1 offence and therefore will typically be heard at the Local Court. However, an election can be made by either yourself or the prosecution in which the matter will be finalised at the District Court.

At Benjamin Leonardo – The Defenders, we are highly experienced in representing clients at Local, District and Supreme Courts in NSW. Should you be charged with possession of child abuse material, you can be confident that our criminal defence lawyers are dedicated to achieve the best possible outcome for your case, regardless of which Court the matter is heard at.

For a FREE first consultation for more accurate advice pertaining to your matter, please contact our Sydney based criminal lawyers now.