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What Is Child Exploitation Material?
Section 228D of the Criminal Code Act 1899 Act carries a maximum of 14 years imprisonment (unless there are circumstances of aggravation of using a hidden network in which case the maximum term of imprisonment is 20 years imprisonment). The elements of a child exploitation material offence are that a defendant:
- knowingly;
- Had in their possession;
- A device or thing;
- Containing child exploitation material;
- Without reasonable excuse.
Of significance, the term child exploitation material is not limited to photos and videos. It can include, for instance, a defendant writing fantasies in their diary. The term is considered in its broad context and the definition is contained in section 207A of the Criminal Code Act 1899 Act:
“means material that, in a way likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years:
- a. in a sexual context, including for example, engaging in a sexual activity; or;
- b. in an offensive or demeaning context; or
- c. being subjected to abuse, cruelty or torture.
Amendment to sentencing legislation
When you make contact with our criminal defence lawyers, either by phone, online or face-to-face, we can provide experienced advice, unique to your situation.
Once you are booked in for a 30-minute free, non-obligation consultation with our Brisbane-based criminal law firm, which can be done over the phone or in person, you can tell us about your case so we can make an assessment. We will then explain to you the general terms, what to expect, and give our estimate.
If you decide to retain us, from here, you can place your trust in our team.
Our team is focused on providing exceptional client care. You can also have confidence knowing that our team of trusted criminal lawyers work with you in a matter of confidentiality. From regulatory proceedings to disciplinary proceedings, our criminal defence team uses their knowledge and experience to get the results you want.
Exceptional Circumstances
There is no statutory definition for ‘exceptional circumstances’. R v BCX [2015] QCA 188 provides this Court with a guideline as to the process a Court may undertake when considering whether exceptional circumstances exist. This case involved a different offence of ‘indecent treatment of a child’, however, it gives guidance on the relevant principles because it too requires a defendant to serve an actual term in prison unless there are exceptional circumstances.
It is at the discretion of the sentencing Judge as to what may or may not constitute exceptional circumstances. There is no singular approach. When sentencing a defendant for offences of this nature the sentencing Judge is required to give primacy to the considerations set forth in section 9(6) and 9(7) of the PSA. In BCX it was noted at [34] that such considerations “not only include factors going to an assessment of the objective seriousness of the offence, the effect of the offence on the victim and the need for personal and general protection and deterrence, but also such considerations as the offender’s prospects of rehabilitation, the offender’s antecedents, age and character and whether there is remorse and any medical, psychiatric or other relevant report relating to the offender.”
Defences
Legitimate purpose
It is a defence to offences relating to producing child exploitation material if the accused proves that:
- They engaged in the conduct for a genuine artistic, legal, scientific, educational, medical or public benefit purpose; and
- The conduct was reasonable in the circumstances for that purpose.
For instance, a legitimate purpose may include a Doctor examining a child and taking photographs or written notes as part of the medical records.
However, if charged it would be incumbent on the Doctor to raise the defence (either on the Crown case or by calling evidence) and then the Crown would be required to negate this beyond a reasonable doubt. In matters such as these, there is always scope for case conferencing but this is not an automatic acquittal. Each case, and defence, is considered on its own merits
Cultural exemption
It is a defence for the accused to prove that:
- At the time the material was produced, it was subject to a relevant conditional cultural exemption in relation to a showing; and
- The conduct was for the purpose of that showing;
Mistake as to age, no defence.
It is not a defence to any of these offences that the accused did not know the children involved were underage or believed that they were not underage (Section 229). In most cases, there is no direct evidence as to the age of the child in, for instance, an image. It is an assessment that a Judge or Jury would make given their everyday experience as to whether the child depicted is under the age of 16 and they must be satisfied beyond a reasonable doubt in order to convict a defendant.
What to do if I am charged with possession of child exploitation material?
This is a complex area of the law and is ever-evolving. It is important to protect your rights any time the Police wish to question you about the matter and immediately seek legal advice.
Call Rana Lawyers for expert advice
Possession of child exploitation material is a grave offence with severe legal consequences. Convictions can result in lengthy prison sentences, substantial fines, and a lifelong criminal record.
It’s critical to have an experienced criminal lawyer on your side who understands the gravity of any charges you are facing. Our expert criminal lawyers will work diligently to protect your rights and future.
At Rana Lawyers, our expertise, knowledge of the law, and commitment to your defence are instrumental in helping our clients facing these charges.
