POSSESSION OF CHILD EXPLOITATION MATERIAL IN WESTERN AUSTRALIA

Article by Lisa Riley.

The exploitation of children on the internet has risen due to the nature of the world whilst web. The Australian government now maintains the Australian National Victim Image Library (“ANVIL”) , being a database which help identify and track children at risk.

Section 220 of the Criminal Code Act Compilation Act 1913 (WA) (“the Criminal Code”) establishes an offence of possession of Child Exploitation Material. The charges are very serious and carry a penalty of 7 years imprisonment. A person may also be charged under sections 218 or 219 of the Criminal Code for producing or distributing Child Exploitation Material (“CEM”).

There is also a corresponding federal offence in the Commonwealth Criminal Code including the use of a carriage service to procure children under 16, to transmit child abuse material transmit to a child under 16 and for accessing child pornography of a child under 18.

All of these offences are serious.

In WA, the offence of possession of CEM strictly indictable meaning it can only be dealt with by a Judge or a jury in the District Court of WA. These types of charges must be dealt with by  the superior court, however the accused’s initial appearances take place in the jurisdiction of the Magistrates Court of WA. Magistrates only have the power to indict or “refer up” the charge to the higher court for trying or sentencing or to make orders to discontinue a charge under s 25 of the Criminal Procedure Act 2004 in the lower court.

What is Child Exploitation Material?

CEM can be comprised of any number of materials including photos digital images, videos, video or graphic stories or drawings which depict a child in a sexualised context. It does not have to be in a demeaning or offensive context, however quite commonly the CEM depicts children in a horrendous array of situations and circumstances which can include elements of abuse, cruelty, debasement, torture or at worst in situations where children have lost their lives as a result of the abuse.

People charges with these offences often have search warrants executed and personal phones, computers, devices confiscated which the police forensically examine. Often Apps are used to receive or distribute the CEM. Often websites and torrent platforms are used to conduct this illegal activity.

Under a new federal system of classification, Commonwealth legislation defines CEM as “Child Abuse Material” (“CAM”) under which the CEM is classified into four (4) distinct categories, however only two (2) of the four (4) categories of CEM are illegal. The categories of CEM which are considered illegal under the CAM system are categories 1 and 2 of the CEM.

The new system of categorisation which has been adopted by some states is much broader than previously used and attaches to children under 18 years, rather than under 16 years which is the statutory threshold in some states including WA.

Categories of CEM and CAM

Each category has a minimum threshold for the offence as explained below:

Category 1:

Must depict a pre-pubescent child perceived to be under the age of 13 years old. The child victim must be a real child. Further, the depiction must show sexual activity involving a child (or involving a child watching a sexual activity) and have a clear focus on the child’s genitals or anus.

Category 2:

The CEM must depict a pre-pubescent child perceived to be under the age of 13 years old which includes animated or written materials involving a child or children and will involve a child, or children, over the age of 13 years old, or Commonwealth Child Exploitation Material with a child, or children, under the age of 18 years old.

Category 2 Child Exploitation Material is broader and is not limited to the above. It will also include any material which is considered to meet the Western Australian or Commonwealth Legislative Guidelines and definitions as Child Exploitation Material.

Defences to a charge of Possession of Child Exploitation Material

Section 221A of the Criminal Code establishes some defences available to an accused person who is charged with the offence of Possession of Child Exploitation Material. The defences include, but are not limited to:

• the material to which the charge relates coming into the accused person’s possession unsolicited; and
• as soon as the accused person became aware of the nature of the material the accused person took reasonable steps to get rid of it.

Interestingly, s221A provides that accused cannot rely on a defence to say that they did not realise the age of the child ie/ that the child was under 16.

If you, a member of your family or a friend, has been charged with possessing Child Exploitation Material or any other offence relating to CEM or CAM, you should immediately obtain legal advice as early as possible. Our experienced team of criminal lawyers can provide advice and representation from the initial arrest, provide advice and representation right through to the trial or to a sentencing.

*The information provided in this website serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable legal team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.  

Consult our legal team