Child Abuse Material & 'Up-skirting' Offences

The possession, distribution, and production of material that shows or describes a child in a way that a reasonable person would regard as offensive constitutes an offence punishable by 10 years imprisonment.

It is also an offence to use a child in the production of child abuse material which is punishable by 10 or 20 years imprisonment depending upon the factual circumstances.

The type of material that could be considered offensive includes:

• A child as a victim of torture, cruelty, or physical abuse;
• A child engaging in a sexual pose or sexual activity (whether or not in the presence of other persons);
• A child in the presence of another person who is engaging in a sexual pose or sexual activity;
• The private parts of a child; and/or
• Cartoon depictions of any of the above.
  
  

To keep up with the ever-evolving digital landscape, the NSW Government recently introduced legislation to combat behaviour which has been seen to encourage the possession, distribution, and production of child abuse material such as administering, or encouraging the use of, a digital platform to deal with child abuse material and providing information about avoiding detection. These types of offences carry maximum penalties of 14 years imprisonment.

There are a number of potentially relevant defences available to these offences, such as innocent possession, distribution, or production of child abuse material, adequate steps were taken to dispose of the material once it became known to the alleged offender as being material of that nature, the behaviour was for public benefit, the images were of only the alleged offender, or in a consensual sexting scenario the alleged offender was also under 18 years and a reasonable person would consider the possession of the material acceptable.

This is an area of law which is particularly complex and rife with misinterpretation, which is why it is imperative you consult an experienced criminal defence lawyer. If you find yourself charged with any type of child abuse offence, do not hesitate to reach out to the team at Jackson John Defence Lawyers so we can help you successfully navigate the complicated Court process.

‘Up-skirting’ refers to the filming of a person’s private parts without consent. Private parts are defined by the Crimes Act 1900 (NSW) to include a person’s genital area or anal area, whether bare or covered by underwear, or the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breast are sexually developed.

Filming means the person cause one or more images (whether still or moving) of the other person or the other person’s private parts to be recorded or transmitted for the purpose of enabling the person or a third person to observe those images (whether during the filming or later).

A person who films another person’s private parts without consent, knowing the other person does not consent, with the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, in circumstances which a reasonable person would expect the person’s private parts could not be filmed is liable for a maximum term of imprisonment of 2 years and/or the imposition of a $11,000 fine.

If the person films the private parts of a child under the age of 16 years or constructs some form of apparatus or amends the structure of a building to facilitate the filming, the maximum penalty increases to 5 years imprisonment.

Our team at Jackson John Defence Lawyers are experienced in putting the Prosecution to strict proof. What does this mean? To be found guilty, the onus is on the Prosecution to prove the “essential elements” of the offence beyond reasonable doubt.

This is a very high threshold and often cases that appear unwinnable at the start, quickly fall apart with rigorous defence strategy. Should you find yourself charged with an offence such as this, please contact our team and we will assist you to mount an effective defence case.