What can I Expect if I Have Been in Possession of Child Exploitation Material (‘CEM’) in Queensland?
It is an offence in Queensland for a person to be in possession of Child Exploitation Material.
Section 228D of the Queensland Criminal Code states that the maximum penalty for a person who knowingly possesses child exploitation material is 14 years imprisonment.
What is Child Exploitation Material?
Child Exploitation Material, referred to as ‘CEM’ is defined as material that, in a way likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years –
(a) In a sexual context, including for example, engaging in a sexual activity; or
(b) In an offensive or demeaning context; or
(c) Being subjected to abuse, cruelty or torture.
What is the penalty outcome I am looking at if I am in found to be in possession of CEM?
The penalties for the Queensland offence of Possessing CEM vary significantly depending upon a range of factors. For example:
- The quantity of images and videos;
- The classification or category of each image/video and their level of seriousness;
- The length of time in which CEM was being accessed; and
- The overall objective circumstances regarding the offending.
Unfortunately, determining a penalty range is not mathematical, for example that a certain type or number of CEM will equate to a specific penalty.
As such, at a sentence we are able to argue for penalties ranging from fines being imposed, through to terms of actual imprisonment, depending on the circumstances.
What is the Court Process once I am charged with Possession of CEM?
All criminal charges commence in the Magistrates Court. Depending on the type of offence (either summary or indictable) a matter may proceed to the District or Supreme Court.
The offence of Possessing CEM is an indictable offence that is dealt with in the District Court. However, an offence of this type can be dealt with summarily if the following circumstances are satisfied and the defendant does not elect a jury trial:
- The offence is of a sexual nature; and
- There is a complainant child; and
- The child is 14 years or over; and
- The defendant pleads guilty.
There is a number of steps that a matter takes before it can be committed to the District Court. For example:
(1) You have the option of electing a full or partial brief of evidence from the prosecution. It is often the case that a number of court dates is required to secure a full brief of evidence given the delays in the laboratory examinations of digital material; and
(2) You also have the option of engaging in negotiations with the prosecution, for example, to amend the statement of facts alleged against you.
Your legal representatives will then discuss with you the most suitable path to have your matter committed to the District Court.
What should I do if I have been charged and how can you assist?
While this article is intended to provide you with an overview of what to expect if you are charged with possessing CEM, it is not to be considered legal advice and may not cover important aspects that apply to your individual circumstances.
It is important that you engage legal representatives to act on your behalf because we can assist you by guiding you through the process and ensuring you understand the nature of the proceedings. We explore different strategies and provide you with our advice at each stage of your matter to ensure you are making informed decisions that are not detrimental to the overall outcome of your case.
If it comes to pass that you elect to resolve your matter by way of a plea of guilty, we ensure you are putting your best foot forward at your sentence by assisting you in obtaining sentence prep material, such as character references and a psychological report. On the day of your sentence, we make submissions on your behalf highlighting the relevant mitigating factors to the court.
If you have been charged with an offence of this nature, you should seek our advice.