Section 91H of the NSW Crimes Act makes it an offence to possess, produce or disseminate child abuse material.

The offence carries a maximum penalty of 10 years imprisonment in the District Court or 2 years in the Local Court.

‘Child abuse material’ is material that depicts or describes, in a way that reasonable persons would regard as being offensive:

a child victim of torture,

a child apparently engaged in sexual activity or a sexual pose, or in the presence of another engaged in sexual activity or a sexual pose, or

a child’s genitalia.

Pleading Not Guilty

If you don’t agree with the allegations, it is important for your lawyer to fight for the case to be dropped as early as possible.

This can be achieved by:

Obtaining any statements and materials that support your case,

Writing and advising the prosecution of any inconsistencies or other weaknesses in the case against you,

Advising that the material cannot be described as child abuse material because it is not contrary to accepted moral standards, or that the material is for a literary, artistic, educational, journalistic, medical, legal or scientific purposes,

Advising that you have a valid defence, and

Pressing for the withdrawal of the case.

If the prosecution refuses, your criminal lawyer should be experienced at winning child abuse material cases similar to yours.

Defences

Your lawyer can advise you if any of the following defences apply:

Innocent Possession, Production or Dissemination

It a defence if you did not know, and could not be reasonably expected to have known, that you possessed, produced or disseminated the material.

Removing the Material

It is a defence if you got rid of the material as soon as you became aware it was there.

Classified Material

It is a defence if the material was given a rating such as M, MA or R.

Public Benefit and Law Enforcement

It is a defence if the material was possessed, produced or disseminated for the benefit of the public.

Conduct is for the public benefit if necessary for the enforcement of laws or administration of justice.

Approved Research

It is a defence if approval was obtained from the Attorney General and he material did not go beyond that approval.

Duress

This is when you are forced to possess, produce or disseminate child abuse material under a threat of physical violence or death.

Pleading Guilty

If you wish to plead guilty to a child abuse material charge, any of the following penalties may apply:

Non Conviction Order

This means that you are guilty but the court does not impose a criminal conviction upon you.

The court will look a range of matters when deciding whether to grant a ‘section 10 dismissal or conditional release order’ – including the incident itself, the lead-up to the incident, your general character and your personal circumstances.

Good behaviour bond

This means that you cannot commit any further offences for the duration of the bond.

The bond may have additional conditions, such as seeing a Community Corrections officer and complying with their directions.

Community service order

This means that you must undertake a specific number of hours of unpaid work over a 12 month period.

The maximum is 500 hours.

Community service orders are not available to all defendants or for all ‘sex offences’.

Your lawyer will be able to advise whether community service is available to you.

Intensive correction order

This means that you come under the supervision of the Department of Corrections and are required to undertake 32 hours of community service work per month.

You may also be required to undertake rehabilitation programs, attend conferences and be subjected to urinalysis and monitoring.

Intensive correction orders can last up to 2 years.

Intensive correction orders are not available to all defendants or for all ‘sex offences’.

Your lawyer will be able to advise whether an intensive correction order is available to you.

Home detention

This means that you must generally stay at home for the duration of your sentence, subject to exclusions such as approved work or attending medical appointments or counselling.

Home detention orders can last up to 18 months.

Home detention orders are not available to all defendants or for all ‘sex offences’.

Your lawyer will be able to advise whether home detention is available to you.

Suspended sentence

This is when you are sentenced to a period of imprisonment, but are not actually sent to prison as long you comply with any conditions and do not commit any further offences.

Suspended sentences can last up to 2 years.

Full time prison

This is when you are sent to gaol.

Full time imprisonment can only be imposed if no other alternative is appropriate in the circumstances.

Call our experienced criminal lawyers today for a free first appointment where we can discuss your child abuse material case and advise you of the best way forward.