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Possess Child Pornography

Possessing child pornography is an offence under section 91H of the Crimes Act 1900 (NSW).

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What the prosecution must prove

To prove this offence, the prosecution must show beyond reasonable doubt that:

  • A person possessed child abuse material, or
  • A person disseminated child abuse material, or
  • A person produced child abuse material.

What is “child abuse material”?

The Crimes Act defines child abuse material to mean material that depicts, in a way that reasonable persons would regard as being offensive:

  • A child as a victim of torture, cruelty or physical abuse
  • A child engaged in or apparently engaged in a sexual pose or sexual activity
  • A child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity
  • The private parts of a child

The matters to be taken into account in deciding whether reasonable persons would regard particular material as being offensive include:

  • The standards of morality, decency and propriety generally accepted by reasonable adults
  • The literary, artistic or educational merit of the material
  • The journalistic merit of the material
  • The general character of the material.

What constitutes “producing child abuse material”?

Produce child abuse material includes:

  • film, photograph, print or otherwise make child abuse material, or
  • alter an image for the purpose of making child abuse material, or
  • enter into an agreement or arrangement to do so.

What constitutes “disseminating child abuse material”?

Disseminate child abuse material includes:

  • send, supply, exhibit, transmit or communicate it to another person, or
  • make it available for access by another person, or
  • enter into an agreement or arrangement to do so.

Defences

You may have a defence if:

  • You did not know, and could not reasonably be expected to have known, that you had produced, disseminated  or possessed child abuse material.
  • That the material came into your possession unsolicited and, as soon as you became aware of it, took reasonable steps to get rid of it.
  • Your conduct was of public benefit of enforcing or administering the law, monitoring compliance with the law or the administration of justice and did not extend beyond what was of public benefit.
  • You are a law enforcement officer acting in the course of your duties and your conduct was reasonable in the  circumstances.
  • That the material was classified under the Classification (Publications, Films and Computer Games) Act 1995, other than as refused classification.
  • You were conducting research approved in writing by the Attorney General.

Will I go to jail?

The maximum penalty is imprisonment for 10 years. The offences of production, dissemination and possessing child abuse material are regarded seriously by the courts and sentences of imprisonment  are often imposed.

The sentencing magistrate or judge will consider the objective seriousness of the offence, whether you pleaded guilty to the offence, whether you have prior convictions, your subjective circumstances such as employment and health and whether remorse has been shown.

For the full range of penalties that can be imposed, see our Sentencing Options page.