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Offences – Possess Child Exploitation Material

s228D Criminal Code 1899 makes it an offence to possess child exploitation material.

What the prosecution must prove.

The prosecution must prove beyond reasonable doubt that:

1. The defendant knowingly possessed material.

2. The material was child exploitation material.

What it means.

Child exploitation material means a depiction of child under 16, or apparently under 16, engaging in sexual activity, subject to abuse, cruelty or torture or in an offensive or demeaning context in a way likely to cause offence to a reasonable adult.

Material is not limited to a picture or video. Material includes an illustration or cartoon that depicts a child apparently under 16, even a story that describes a child involved in sexual activity.

The prosecution must prove a defendant knew they had the material. Possession includes having the material in a person’s possession or custody, or under control.

The available defences.

It is a defence for a person to prove that they engaged in conduct for a genuine artistic, educational, legal, medical, scientific or public benefit purpose and the conduct was reasonable by community standards.

The usual penalties.

The maximum penalty for the criminal offence of Possession Child Exploitation Material or Distributing Child Exploitation Material is 14 years imprisonment.

The maximum penalty is increased to 20 years imprisonment if it is charged and proved a hidden or anonymised network was used to commit the offence.

The maximum penalty is a poor numerical indicator of sentences usually imposed.  It plays a role in defining the relative seriousness of an offence. The maximum penalty is hardly ever imposed.

The law mandates that the court must impose a sentence of actual imprisonment unless there are exceptional circumstances. Exceptional circumstances can comprise of a number of individual circumstances that are collectively exceptional. It follows a sentence of actual imprisonment is usually imposed.

Factors that affect the appropriate penalty include the quantity of the material, the nature of the material, the age of the child or children, the age of the offender, and the duration of the offending.

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