Updated Article: 10 June 2020
A person can be criminally liable for accessing, possessing or distributing child exploitation material (“CEM”) from the privacy of their own home. This is because police have the forensic capabilities to investigate and trace users who engage in such conduct.
If you have been charged with an offence relating to CEM, it is likely that police have already executed a search warrant on your residence. In doing so, they may have seized electronic devices capable of containing media for the purpose of creating a report which will form part of the evidence.
In assessing the criminal liability of your charge/s, it is important to assess the penalty which could be imposed, which may differ significantly from the maximum penalty availability. The current maximum penalties for CEM related offences vary between State and Commonwealth legislation. As an example, the maximum penalty for possessing CEM is 14 years imprisonment (State) and the maximum penalty for using a carriage service to access CEM is 15 years imprisonment (Commonwealth).
In assessing the penalty which could be imposed, courts will have consideration to legislation, caselaw and matters relevant to the offence.
Section 9(2)(a) of the Penalties and Sentences Act 1992 provides that a sentence of imprisonment for a criminal offence should only be imposed as a last resort. However, this provision does not apply to offences concerning child exploitation material, as it is an offence of a sexual nature committed in relation to a child under 16 years of age. As such, term of imprisonment is highly likely, unless an exceptional circumstance can be established.
The sentencing judge will have to give careful consideration to section 9(7) of the Act, which provides:
- the nature of any image of a child that the offence involved, including the apparent age of the child and the activity shown;
- the need to deter similar behaviour by other offenders to protect children;
- the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community;
- the offender’s antecedents, age and character;
- any remorse or lack of remorse of the offender;
- any medical, psychiatric, prison or other relevant report relating to the offender; and
- anything else about the safety of children under 16 the sentencing court considers relevant.
Section 9(7)(a) of the Act is an important as it relies on the report created by police. This report will have assessed the apparent age of the child and activity shown. These two factors will vary case-to-case and may require less or more punishment.
In the matter of R v Vantoosten  QCA 54, the Court of Appeal determined that the nature of the material was a more significant factor than the quantity of material, which is consistent with section 9(7)(a) of the Act. This case was applied to a recent client of our firm, who had been charged with possessing more than 35,000 images. However, these images were described as “low-level” and the court did not impose a term of imprisonment.
In relation to our representation of client’s who are charged with CEM related offence, we have obtained unprecedented sentencing results, as well as excellent negotiated outcomes. If you are unfamiliar with the court process and have been charged with an offence involving child exploitation material, our firm can assist you. Our firm is one you can trust, as we are experienced in criminal law and have a reputation for delivering favourable outcomes.
To organise a complimentary case appraisal, call us on (07) 3188 5765.