Child Abuse Material Charges

The NSW offence — s 91H

Crimes Act 1900 (NSW), s 91H: a person who produces, disseminates or possesses child abuse material is liable to imprisonment for 10 years. "Child abuse material" is defined in s 91FB; "disseminate" and "possess" are defined broadly and include making material available and possession of data.

Section 91H creates three forms of the one offence, each carrying a maximum of 10 years' imprisonment:

• Possession — which extends to data held on or accessible from a device, not only physical material;
• Dissemination — sending, supplying, exhibiting, transmitting or making material available to another person, including by file-sharing; and
• Production — filming, photographing or otherwise creating material, or participating in its creation.

Although the statutory maximum is the same for each, the courts treat the three tiers very differently at sentence: production and dissemination are dealt with more seriously than possession, and within possession, the volume and nature of the material and the period over which it was held all bear on the outcome.

The definition in s 91FB is wide: it covers material depicting or describing a person who is, or appears to be or is implied to be, a child in a sexual context or as a victim of abuse, in a way that reasonable persons would regard as offensive — and it can extend to drawn, animated or computer-generated depictions, not only photographs.

The Commonwealth offences — carriage services

Criminal Code (Cth), Subdivision D of Division 474: using a carriage service to access, transmit, make available, publish or solicit child abuse material (s 474.22), and possessing or controlling child abuse material obtained or accessed using a carriage service (s 474.22A) — each carrying imprisonment for 15 years, with aggravated and repeat-offender provisions carrying more.

Because most alleged conduct in this area involves the internet, the same facts frequently engage Commonwealth offences: anything accessed, downloaded, transmitted or made available online involves a "carriage service". The Commonwealth offences carry higher maxima — 15 years for the core offences — and sit within a different sentencing regime, including provisions that require actual custody for certain offences unless exceptional circumstances are established. Commonwealth fines, where they arise, are calculated in penalty units of $330 each — though these are imprisonment-scale offences and fines are rarely the frame in which they are sentenced.

Which charges are laid — NSW, Commonwealth, or both — shapes the whole proceeding: the investigating agency (NSW Police or the AFP), the prosecutor (the DPP or the CDPP), the available sentencing orders and the applicable case law. Identifying the jurisdictional position is one of the first pieces of defence work in every one of these matters.

The forensic dimension — how device evidence works

These prosecutions are built almost entirely on digital forensic evidence, and the defence work is correspondingly technical. After a search warrant is executed, devices are seized and forensically imaged, and the prosecution case is constructed from what the examination finds. The questions that matter are rarely whether files exist — they are:

• Attribution — who actually downloaded, viewed or sent the material, on a device or network other people could access;
• Knowledge — whether the person knew the material was present, particularly for cached, temporary or thumbnail files created automatically by software;
• Accessibility — whether deleted or unallocated data the examiner recovered was ever accessible to the user, or known to them;
• Counting and characterisation — how the material has been categorised and tallied, which drives the prosecution's presentation of seriousness; and
• The integrity of the process — the warrant, the imaging, the chain of custody.

Each of these is a proper subject of expert scrutiny. The prosecution's forensic conclusions are evidence, not facts, and testing them is a core part of how these matters are defended.

Statutory defences

The NSW Act provides defences to a s 91H charge, including that the person did not know, and could not reasonably be expected to have known, that they possessed the material; that the material came into the person's possession unsolicited and was disposed of as soon as its nature became apparent; and defences relating to law enforcement, classification and other legitimate purposes. The Commonwealth offences carry their own defence provisions. Whether any defence is realistically open is a question that can only be answered on the forensic evidence — and it should be answered with advice before any account is given to police, not after.

Consequences beyond sentence

Conviction for child abuse material offences carries consequences that outlast the sentence. Production and dissemination offences are registrable offences under the Child Protection (Offenders Registration) Act 2000 (NSW), and possession offences can also engage registration. Registration brings reporting obligations that run for years — what they involve, and for how long, is explained on the Child Protection Register page. These consequences are part of the advice that should be given before any plea is entered, because they are part of what the plea decides.

How Lenz Legal approaches these matters

Dean Lenz is an Accredited Specialist in Criminal Law. These matters are conducted with discretion and without judgment, and they are conducted technically: the jurisdictional position is identified first, the forensic material is obtained and reviewed — with independent expert assistance where the analysis warrants it — and the elements, defences and registration consequences are assessed before any decision about plea is made. People facing these charges are often facing the most isolating moment of their lives; the professional obligation is straightforward advice, properly prepared work, and the presumption of innocence applied in full.

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