Possession of Child Abuse Material
Possession of child abuse material is a serious and complex criminal offence. You may be charged with this offence if you have child abuse material in your possession and either you or the electronic material was in the State of Victoria. For example, if you are found to have downloaded child pornography on your laptop. Similarly, if you have images on your mobile phone of minors engaging in sexual activity, you may be charged with possession of child abuse material. You may also be charged with this offence if you have been given access to an online storage account, with your own username and password and with ability to transfer, store and delete files.
Note: If your charge relates to alleged possession of child abuse material before 1 July 2017, the old offence of ‘Possession of Child Pornography’ will apply.
Elements of the Offence
In order to establish a possession of child abuse material charge, the Police must prove beyond reasonable doubt that you were knowingly in possession of child abuse material.
‘Possession’ means to physically control. You must also have had the intention to physically control the child abuse material.
‘Child Abuse Material’ is material that depicts, or implies to depict minors (under the age of 18) engaged in sexual acts, or sexual poses; or as a victim of torture, cruelty or physical abuse; or depicts the sexual regions of a child or someone who is implied to be a child, in circumstances a reasonable person would consider offensive.
The maximum penalty if you are found guilty of possession of child abuse material is a term of imprisonment of up to 10 years. However, a judge will consider a broad range of circumstances prior to making a sentencing determination.
Defences Available for the Possession of Child Abuse Material
There are very specific defences available for a possession of child abuse charge. To be found guilty of this offence, you must have knowingly been in possession of child abuse material. If the child abuse material found in your possession depicts persons or people who were over the age of 18 and the alleged child abuse material possesses artistic benefit or the material is of public benefit (for example education on child abuse), you will have a defence. You will also have a defence if the image is of yourself and you do not distribute the image.
If you were a child at the time, you don’t distribute the material and the material does not depict a criminal offence, you could have a defence. If you are not more than 2 years older than the alleged victim (who is 16 or 17 years old) and you capture material that does not depict a criminal offence with the child’s consent and you do not distribute that material, you will also have a defence to your charge. You may also have a defence if you are married to or are in a domestic partnership with the alleged victim. A further defence exists if you did not intentionally possess the child abuse material and upon discovering that you were in possession of such material, ceased to possess (e.g. deleted it). You can also argue that you did not have possession of the child abuse material. For example, if you did not actually download the material, but instead viewed it on a website.
If you have been charged with possession of child abuse material, it is important to contact an experienced legal practitioner to arrange an interview so that the best defence can be identified for your case.
 Crimes Act 1958 (Vic) s 51G(4)-(5).
 Crimes Act 1958 (Vic) s 51G(1)-(3).
 Crimes Act 1958 (Vic) s 51A.
 Crimes Act 1958 (Vic) s 51L.
 Crimes Act 1958 (Vic) s 51O.
 Crimes Act 1958 (Vic) s 51N.
 Crimes Act 1958 (Vic) s 51P.
 Crimes Act 1958 (Vic) s 51Q.
 Crimes Act 1958 (Vic) s 51T.
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Views expressed in this article are not necessarily endorsed by Leanne Warren and Associates.