Accessing Child Abuse Material: Charges in Melbourne, Victoria

Accessing child abuse material is a serious offence, if you are facing charges for accessing child abuse material, this crime carries a maximum custodial sentence of a decade in custody. This is, therefore, a matter with which you want the best advice and representation available.

You should contact an expert criminal lawyer urgently if you’re facing these charges.

What is child abuse material?

According to Section 51A of the Crimes Act 1958, child abuse material refers to material that depicts or describes:

• A person who is, or who appears or is implied to be, a child:
  • As a victim of torture, cruelty, or physical abuse (whether or not it is sexual activity).
  • As a victim of child sexual abuse.
  • Engaged in, or apparently engaging in, a sexual pose or sexual activity, whether or not another person is present.
  • In the presence of another person who is engaged in, or apparently engaging in, a sexual pose or sexual activity.
• The genital or anal region of a person who is, or appears or is implied to be, a child.
• The breast area of a person who is, or appears or is implied to be, a female child.

• Reasonable persons would regard the material as being offensive in the circumstances.

Any intimate image depicting a person under the age of 18 is considered child abuse material.

It’s crucial to understand that possessing, accessing, producing, and distributing child abuse material are all criminal offences in Victoria. The penalties for these offences are severe, with a maximum sentence of 5 years in jail for possession of child abuse material and 10 years for the production of child abuse material.

Accessing child abuse material via a carriage service

In Victoria, accessing child abuse material via a carriage service (such as the internet) is a serious criminal offence under both state and federal laws. The Commonwealth Criminal Code Act 1995 specifically addresses this in Section 474.22, making it illegal to access child abuse material using a carriage service.

Have you been charged with Accessing Child Abuse Material?

Some questions to discuss with your lawyer are:

• Did you knowingly access child abuse material?
• Did you access child abuse material that you thought was something else?

Importance of Jury Determination

Even if you honestly did not believe the material you accessed was child abuse material, your opinion is not a defence. Whether something is or is not child abuse material is a question of fact to be determined by a Jury. There is no mental element that attaches other than your intention to possess the materials in the first place. If a jury decides that you were aware of the nature of the material, and that the material was child abuse material, and it was in your possession, that is sufficient to satisfy the charge.

Available Defences

There are defences depending on the unique circumstances of your case. Exceptions to the charges may also apply, which will be addressed by your lawyer if relevant.

Exceptions Based on Specific Circumstances

• Work-Related Access: Did you access child abuse material as part of your job? Depending on the nature of your work, there may be an exception to the charge.
• Material Classification: Was the material not classified as ‘RC’ (Restricted Content)? This could also be relevant to your defence and should be discussed with your lawyer.
• Unaware of Possession: Did you bulk download multiple images and were not aware that the specific images relating to the charge were in the bulk download or did someone else have access to your computer?

Personal Involvement in the Image

• Image of You as a Child: Was the image taken of you, either alone or with someone else?
• Criminal Act Depiction: Does the image show a criminal act where you were the victim of another person? These circumstances could qualify you for an exception.

Defences Based on Context

Several defences are available depending on the situation:

• Artistic or Educational Merit: If the material was used for an artistic purpose or public benefit (e.g., educational slides, journalistic merit as a record of public interest), this may be a valid defence.
• Your Age at the Time: If you were one of the children depicted in the material, how old were you?
• Age Difference and Consent: If a child depicted is 16 or 17 and you are not more than two years older, with their consent, this could be a defence. However, it’s important to know if the image was distributed to others.

Defences Involving Relationships

• Spouse or Domestic Partner: If the child depicted is your legal spouse or domestic partner, or you had an honest and reasonable belief that they were, this can be a defence.

The elements of the offence

Section 51H of the Crimes Act 1958

The prosecution must prove:

(1) A person (A) commits an offence if-

(a) A intentionally accesses material; and

(b) the material is child abuse material; and

(c) A knows that the material is, or probably is, child abuse material.

(2) A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).

(3) For the purposes of subsection (1), the ways in which A accesses material may include:

(a) viewing material; or

(b) displaying material by an electronic medium or any other output of the material by an electronic medium.

Notes

1 Exceptions apply to this offence-see sections 51J, 51K and 51M.

2 Defences apply to this offence-see sections 51L, 51N, 51O, 51P, 51Q and 51R.

3 A mistaken but honest and reasonable belief that reasonable persons would not regard the child abuse material as offensive is not a defence to this offence-see section 51U.

What is the maximum penalty for accessing child abuse material?

Level 5 imprisonment – which is a maximum of 10 years.

Where Will My Case Be Heard?

Accessing child abuse material can be heard in the Magistrates Court, County Court or Supreme Court of Victoria.

Which court will hear this matter will depend on how many images have been found, the level of seriousness of the image, whether other sex offence charges form part of the brief.

Next steps: questions to consider

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• Do you have a defence in relation to the available defences and exceptions mentioned above?
• Did you access child abuse material?
• If you are planning to plead guilty, what can you do to try to minimise your sentence?

Contact Dribbin & Brown for assistance

If you’re being charged with accessing or possessing child abuse material, it’s crucial to act quickly and seek legal advice. Our experienced criminal defence lawyers understand the seriousness of these charges and are here to provide you with expert legal representation.

We’ll guide you through the legal process, explore all available defences, and work to achieve the best possible outcome for your case.

Don’t face these charges alone – contact Dribbin & Brown Criminal Lawyers online or call 03 9059 0172 for a confidential consultation and take the first step towards protecting your rights and future.