********The changes referred to in this article occurred in 2015, but they were then followed up by more substantive changes via the Crimes Amendment (Sexual Offences) Act 2016, consequently all these new section have now been repealed. We have kept the article to demonstrate the history of the section********
AMENDMENT (CHILD PORNOGRAPHY AND OTHER MATTERS) ACT 2015
The Crimes Amendment (Child Pornography and other matters) Act 2015 came in to force on 1 December 2015.
The Act changes the Prosecution powers in relation to child pornography cases and sets out a statutory regime for pre trial disclosure of child pornography exhibits.
The legislation also introduces three (3) new offences in relation to child pornography, namely; administering a child pornography website (s. 70 AAAB of the Crimes Act 1958), encouraging the use of a website to deal with child pornography (s. 70 AAAC of the Crimes Act 1958) and assisting a person to avoid apprehension (s. 70 AAAD of the Crimes Act 1958).
Section 1 of the Act outlines the purposes of the Act;
The main purposes of this Act are—
- to amend the Crimes Act 1958 —
- to create 3 additional offences related to child pornography; and
- to increase the penalty for the offence of possession of child pornography; and
- to provide for the use of random sample evidence in proceedings for child pornography offences; and
- to provide for the giving of a direction under a warrant requiring assistance from a person with knowledge of a computer or computer network; and
- to amend the Criminal Procedure Act 2009 to restrict inspection by an accused of evidence that is child pornography; and
- to make minor amendments to certain other Acts.
New maximum penalty
Section 4 increases the maximum penalty for possession of child pornography from 5 years to 10 years (level 5 imprisonment).
New offences
Section 6 of the Act creates three (3) new offences.
- 70 AAAB- Administering a child pornography website (Current charge is found here s51E of the Crimes Act, Administering a website used to deal with child abuse material also known as child pornography
A person who administers or assists in the administration of a website that is used to deal with child pornography and the person either has an intent for the website to be used in such a way or has knowledge that the website is used in such a way, is guilty of a criminal offence.
The maximum penalty for this offence is 10 years imprisonment (level 5 imprisonment)
It is a defence to the charge if that person, upon becoming aware of an offence under s. 70AAAB, takes all reasonable steps to avoid the offence occurring again- ie, that they take all reasonable steps to ensure that a person does not use, or continue to use the website to deal with child pornography.
s.70AAAC- Encouraging use of a website to deal with child pornography (Current charge is found here s51F of the Crimes Act, Encouraging use of a website to deal with child abuse material also known as child pornography
This section applies only to adult offenders.
A person is guilty of an offence if they encourage another person to use a website, with the intention that the other person use the website to deal with child pornography.
The maximum penalty for this offence is 10 years imprisonment (level 5 imprisonment)
In relation to this offence, the Prosecution do not need to prove;
- The identify of the person that is being encouraged
- That the website was in fact used by the person to deal with child pornography
- That the person used the website to deal with child pornography as a result of the offender’s encouragement
It is important to note that it is not an offence for a person to attempt to commit this offence. Ie, a person cannot be charged with attempted encouraging.
s.70AAAD- Assisting a person to avoid apprehension (Current article explaining the charge can be found here s51I of the Crimes Act, Assisting a Person to Avoid Apprehension) or the original legislation can be found here.
It is an offence for a person to provide information to another person, for the purposes of that second person to avoid or reduce their likelihood of apprehension in relation to the following offences;
- Production of child pornography (Crimes Act 1958 s.68) has a new section which is s51C Producing Child Abuse Material or Child Pornography
- Procurement of a minor for child pornography (Crimes Act 1958 s.69)
- Possession of child pornography (Crimes Act 1958 s.70) has a new section which is s51G Possession of Child Abuse Material (Child Pornography)
- Administering a child pornography website (Crimes Act 1958 s. 70AAAB) which has a new section which is section 51E
- Encouraging the use of a website to deal with child pornography (Crimes Act 1958 s. 70AAAC) which has a new section as discussed above being section 51F.
- Publication or transmission of child pornography (Classification (Publications, Films and Computer Games) (Enforcement) Act 1995, s. 57A)
The maximum penalty for this offence is 10 years imprisonment (level 5 imprisonment)
The three sections outlined above have also been inserted in the Sex Offenders Registration Act (2004) as Schedule 2 offences. They therefore carry mandatory sex offenders registration if a person is found guilty of the offence. As do the new sections.
Statutory regime for pre trial disclosure of child pornography exhibits
Changes to the Criminal Procedure Act 2009
As per section 43 of the Criminal Procedure Act 2009, an Accused may request material from the Informant, in relation to the investigation, that has not already been provided.
The Crimes Amendment (Child Pornography and other matters) Act 2015 inserts s. 43A which provides that, if the request relates to an exhibit that is child pornography, the Accused may request the inspection of that exhibit, by the Accuseds’ legal practitioner only.
If the Informant refuses such a request, on the basis that the inspection may result in the disclosure of the exhibit to the Accused personally, the Accused may make an application to the Court for an order that disclosure be made, either to the Accuseds’ legal representative or the Accused. (see s. 46 (3) of the Criminal Procedure Act, as inserted by s. 16 Crimes Amendment (Child Pornography and other matters) Act). In making an order under this section, the Court may attach conditions to the disclosure.
Other minor amendments
Part 4 of the Crimes Amendment (Child Pornography and other matters) Act 2015 introduces other minor amendments to various other acts.
These amendments relate to the practical applications and consequences of a finding of guilt for the three (3) new offences outlined in s. 70AAAB, s. 70 AAAC, s. 70AAAD.
If you have been charged or are due to be interviewed in relation to a sex offence and need advice or representation, please contact us immediately. You should meet with one of our experienced sex offence lawyers in Melbourne to discuss your case.
