What is Criminalised?
In Queensland, the term Child Exploitation Material is broadly defined as material that depicts a person under 16 in a sexual, offensive or demeaning way. In New South Wales the definition of Child Abuse Material is very similar but with the additional prohibition on such material depicting the “private parts” of a child. It doesn’t matter whether they are actual or animated children.
The view that animated or cartoon children depicted in the charged imagery was less serious than that depicting real children, was dispelled in the recent decision of R v Edwards [2019] QCA 15 (a case in which 95 % of the imagery seized did not depict real children) where the court held that such imagery is not harmless and can involve the portrayal of sexual abuse just as depraved as that involving real children. So do not interpret cartoon or computer-generated images of children as being somehow less serious than images of real children.
Given that the images are generally located on personal devices like phones or computers, defending cases like this is very difficult. Both States have statutory defences but they are not commonly used. Consequently, most people charged with these offences plead guilty and are going to be sentenced.
Can these Charges be Defended?
Although not commonly defended, some of those charged with these types of offences will argue that the imagery at the centre of the allegations does not meet the definition of child pornography. For example, in Turner v R [2017] NSWCCA 304,(a case involving images of prepubescent girls) successfully argued that the term “breasts” as it appears in the definition of “private parts” in the New South Wales definition of Child Abuse Material connotes a degree of sexual development, and that was lacking in the imagery the police had found in his possession. Accordingly, the defendant was found not guilty of that offence.
In a somewhat similar way, it had been successfully argued in Director of Public Prosecutions (NSW) v Annetts [2009] NSWCCA 86 (a case involving images of young boys some clothed and some naked) that some of the photographs alleged to have depicted Child Pornography could not have done so because the boys depicted in them were not shown in a sexual context. Again, that defence was successful.
These are just two examples of technical defences I have applied in other matters to reach a successful conclusion.
Penalties for Possessing Such Imagery
Under Queensland legislation and also according to New South Wales case law, those convicted of offences involving Child Exploitation or Child Abuse Material should, in all but exceptional circumstances, be sent to prison. So, your lawyer’s job is to find those circumstances and present them to the court. Importantly, the list of what constitutes exceptional circumstances is not a closed one. My experience is that quite often aggregating features particular to the client will ultimately present a picture of exceptionality.
An example of a case where the aggregation of a bunch of relevant features saw the court find that my client had demonstrated “exceptional circumstances” and avoided imprisonment is the case of The Queen v Redacted [2022], unreported decision of Judge Lynch QC, delivered 9th June 2022. Apart from matters of ordinary significance aggregated to show exceptional circumstances, real use was made in that case of the diagnostics in the pre-sentence report prepared on behalf of the client in this matter.
Careful consideration of what is required to make the client stand out in the sentence is the key to avoiding imprisonment.
If I Am Found or Plead Guilty, Will a Conviction Be Recorded?
Given that our lawmakers have made possession of this material a crime attracting a maximum term of imprisonment in Queensland of 14 years and New South Wales 10 years, the majority of offenders who are convicted of this type of offending receive a period of actual imprisonment. Imprisonment in both States comes with a recorded conviction.
But there are cases where I have done it. An example in which I was involved was the case of The Queen v Redacted, an unreported decision of Judge Muir, delivered to Brisbane District Court on 28th December 2021.
In that case, I recognised that success rested on lowering the seriousness of the offending alleged. This was done by demonstrating that the Crown could not adequately classify each of the images. Once that was done, the type of treatment and rehabilitation specific to my client’s reasons for offending and the strong evidence of the intertwined relationship between my client’s employment and continued rehabilitation convinced the court that recording a conviction against his name was counterproductive.
The position in New South Wales and under the Commonwealth Crimes Act is vastly different. Although such a result of statistically possible, given the Sentencing Laws that apply in those types of matters such a result would be remarkable.
What is a Reportable Offender?
If you are convicted of this type of offending in Queensland, and the conviction is recorded against your name, you may be declared a Reportable Offender.
This will mean that your ability to freely move about your community and your contact with children may be severely restricted, and if you breach any of the conditions attached to that declaration, for example by any “reportable contact” with a child that is not incidental to your daily life, it may lead to a prosecution under that legislation.
What is interesting and untested about this legislation is that although it declares that “incidental” contact with a child is not an offence, the question is what about accidental contact?
It is my view that such contact would potentially attract the defences of “accident” and “mistake of fact” as they are found in the Criminal Code, much like they did in the case of Police v Wright [2008] QMC 10. Although in that case it must be conceded that a different law was being considered, it sought to curb the same types of contact between a convicted person and children.
Need help with your matter?
Michael McMillan is very experienced with cases relating to child pornography and possession of child exploitation material.
Contact us today to assist with your matter or call Michael McMillan directly on (07) 5619 6860 or 0409 273 430