Production, dissemination or possession of child abuse material in New South Wales.
The dissemination, production, or possession of child sexual material as punished under the Crimes Act 1900, is one of most common offences that is committed in New South Wales.
In NSW, the offence includes the production, dissemination or possession of child abuse material. The Crimes Act 1900 does not specifically name the offence as child pornography. However, the designation does not matter because the acts involve in the offence as defined in Crimes Act 1900 and child pornography is the same. Clearly, the subject of this offence is a child which should be under 18 years of age.
What is child Pornography?
For NSW, the relevant definition includes reference to depictions or descriptions of a child ‘engaged in sexual activity’ or ‘in a sexual context’. The NSW definition of child pornography also makes reference to a third category of prohibited material, relating to depictions or descriptions of a child ‘as the victim of torture, cruelty or physical abuse (whether or not in a sexual context)’. (Griffith & Simon, 2007)
An applicable provision of the law provides that “child abuse material means a material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or 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 the private parts of a person who is, appears to be or is implied to be, a child.
While international studies have shown that child pornography offenders are almost exclusively male, and are often reported to be white male professionals, their patterns of offending are diverse (Taylor & Quayle 2003).
The offence of child pornography is governed by different provisions of the Crimes Act 1900. It is considered as an offence against the persons. The law used the terms produce, disseminate, and possess of child abuse material in committing the offence of child pornography. Disseminate includes the sending, supplying, exhibiting, transmitting or communicating it to another person, or make it available for access by another person, or enter into any agreement or arrangement to do so. Possess child abuse material includes, in relation to material in the form of data, being in possession or control of data.
Produce child abuse material includes film, photograph, print or otherwise make child abuse material, or alter or manipulate any image for the purpose of making child abuse material, or enter into any agreement or arrangement to do so. (Section 91H, Crimes Act 1900)
The law provides a person charged of the offence a way out. It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material.
It is a defence in proceedings for an offence against section 91H not involving the production or dissemination of child abuse material that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its nature, took reasonable steps to get rid of it.
A person who produces, disseminates or possesses child abuse material is guilty of an offence and shall suffer the maximum penalty of 10 years of imprisonment. If a person uses a child who is under the age of 14 years for the production of child abuse material, or causes or procures a child of that age to be so used, or having the care of a child of that age, consents to the child being so used or allows the child to be so used shall suffer the maximum penalty of 14 years of imprisonment.
The nature and number of images involved are aggravating features that will increase a sentence for possessing child pornography (see R v Jones  WASCA 24).
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Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.