Gold Coast & Brisbane Child Pornography Offences Lawyers
There are a range of offences under both Queensland and Commonwealth legislation relating to the access, possession, distribution and making of child exploitation material (CEM). CEM offending covers a broad range of behaviour, from young people sexting images to their peers through to making and distributing CEM through online networks. There has also been significant legislative change over time, with new offences being established for more specific CEM-related behaviours (e.g. encouraging the use of a CEM website). Due to the seriousness of the crime and severity of the penalties, it is very difficult to convince courts to refrain from recording charges and sentencing, however it can be done. As with all criminal law matters of a sensitive nature, obtaining the expert assistance of an experienced lawyer with decades of experience defending the most serious of charges is an absolute must.
Child Exploitation Material Offences In Queensland
In Queensland, child exploitation material (CEM) is material likely to cause offence to a reasonable adult that describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years:
- in a sexual context, including engaging in a sexual activity
- in an offensive or demeaning context, or
- being subjected to abuse, cruelty or torture.
Under Commonwealth legislation, there are also similar definitions relating to child abuse material and child pornography material. The key distinction between the Queensland and Commonwealth legislative provisions arises from the Commonwealth’s responsibility for internet, phone and postal services and border protection versus the states’ constitutional authority over criminal matters.
Queensland offences relate broadly to the actual possession, distribution, or making of CEM, while the Commonwealth offences relate to the use of either a carriage service (such as the internet or telephone) or the postal service, in relation to such offending.
The elements of Queensland and Commonwealth offences overlap but are not identical. An offender may be charged under both Queensland and Commonwealth legislation, and Queensland police and courts can deal with all offences together in the same matter.
Penalties for CEM Offences in Queensland
The current maximum penalties for CEM-related offences vary between offences, and between state and Commonwealth legislation. For example, the maximum penalty for possession of CEM (a Queensland offence) is 14 years, and the maximum penalty for using a carriage service to access CEM (a Commonwealth offence) is 15 years.
The Penalties and Sentences Act 1992 (Qld) (PSA) states that imprisonment must generally only be imposed as a last resort and a sentence allowing an offender to stay in the community is preferable. However, these principles do not apply to CEM offences. Instead, s9(7) of the Act requires a court sentencing a CEM offender to have regard primarily to:
- the nature of any image of a child that the offence involved, including the apparent age of the child and the activity shown
- the need to deter similar behaviour by other offenders to protect children
- the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community
- the offender’s history, age and character
- any remorse or lack of remorse of the offender
- any medical, psychiatric, prison or other relevant report relating to the offender, and
- anything else about the safety of children under the sentencing court considers relevant.
As it is not unusual for offenders charged with Queensland CEM offences to also face charges under the Commonwealth Criminal Code, the Commonwealth Crimes Act (Cth) 1914 also influences sentencing in Queensland courts. It provides a list of considerations to be taken into account by a court when determining the sentence for a Commonwealth offence (including child pornography and child abuse material offences). The nature and circumstances of the offence are included in this list of considerations. Commonwealth legislation restricts sentencing to prison as a last resort, although case law establishes that imposing a sentence other than prison for CEM-related offenders is the exception.
The appropriate penalty in any case will depend on the particular circumstances of the case before the court, and the sentences imposed may range from non-custodialorders (such as good behaviour bonds, fines, community service or probation orders) to all forms of imprisonment.