Possessing, Making or Distributing Child Exploitation Material
This type of offence occurs when a person possesses images of children under the age of 16 and it doesn’t matter whether they are of actual or animated children.
Given that the images are generally located on personal devices like phones or computers, cases involving child pornography defence are very difficult. Consequently, most people charged with these offences are likely to face sentencing.
In 2013, the penalties for committing offences relating to possession of child exploitation material in Queensland have more than doubled in severity. Actual imprisonment is no longer considered a sentence or last resort for them. Matters which dramatically affect the applicable sentencing range include accurate diagnosis of the cause of the offense and thorough relevant rehabilitation.
My experience has shown that identifying a genuine medical trigger for such conduct dramatically reduces an offender’s culpability and proper treatment lessens the need for deterrent penalties like imprisonment.
In NSW, it was recently affirmed that unless 'exceptional circumstances' exist, a sentence of immediate imprisonment is warranted for offences relating to child pornography.
Arguing 'Exceptional Circumstances'
Experience has shown that identifying a genuine medical trigger for such conduct dramatically reduces an offender’s culpability and proper treatment lessens the need for deterrent penalties like imprisonment.
In NSW, it was recently affirmed that unless ‘exceptional circumstances’ exist, a sentence of immediate imprisonment is warranted for offences relating to child pornography.
Arguing ‘Exceptional Circumstances’
When looking for ‘exceptional circumstances’, very careful attention should be paid to matters such as:
- how the material came into the possession of the offender.
- how long and in what way they were kept.
- what the offender did with the materials.
There may be one or many other matters that a court can take into consideration when trying to identify ‘exceptional circumstances’.
Given the extremely narrow scope of factors that may constitute ‘exceptional circumstances’, only a criminal lawyer that is experienced in these types of cases will be able to identify and effectively present the relevant factors to a court that will qualify your case as having ‘exceptional circumstances’.
Here are just a couple of examples of sentences in which our client avoided a period of imprisonment:
Will a conviction be recorded?
Given that for the State version of this offence the maximum penalty is 14 years imprisonment, and that the vast majority of offenders who are convicted of this type of offending receive a period of actual imprisonment, avoiding the recording of a conviction is extremely difficult. But it can be done. Recently in the case of The Queen v [REDACTED] I convinced the sentencing court that my client should receive a penalty which permitted it to refrain from recording the conviction against his name. It was a fine balancing exercise. Firstly, I recognised that the gravity of the offending must be lowered. This was done by demonstrating that the Crown could not adequately classify each of the images. Then the type of treatment and rehabilitation specific to my client’s reasons for offending had to be secured. Lastly, strong evidence of the intertwined relationship between my client’s employment and continued rehabilitation needed to be demonstrated. In the end, that was all accomplished and my client was appropriately given a sentence which was very rare indeed.
McMillan Criminal Law is experienced with cases relating to child pornography & possession of child exploitation material. Contact us today to assist with your matter.