Penalties for being in Possession of Child Exploitation Material (‘CEM’) in Queensland.
In Queensland it is an offence for a person to be in possession of Child Exploitation Material.
Section 228D of the Queensland Criminal Codestates that the maximum penalty for a person who knowingly possesses child exploitation material is 14 years imprisonment. The maximum penalty is increased to 20 years if the prosecution can prove that the person used a hidden network or an anonymising service in committing the offence, such as a VPN.
Child Exploitation Material or ‘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.
In addition to the above State offences, there are offences under the Commonwealth Law as well which relate to child abuse and child pornography images and videos depicting child abuse children who are under 18 years of age.
The penalties for the State offence of Possessing CEM vary depending upon a number of factors such as (but not limited to) the quantity of images and videos, the classification or category of each image/video and their level of seriousness and the overall objective circumstances regarding the offending.
As such at sentences we are able to argue for penalties ranging from fines being imposed, through to terms of actual imprisonment depending upon the circumstances.
On 15 September 2020 the Penalties and Sentences Act 1992was amended to reflect that when sentencing an offender for a child exploitation material offence, the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.
This means that the court must order actual imprisonment unless there are exceptional circumstances.
What are exceptional circumstances?
In determining what exceptional circumstances are the court must take into account a large number of factors and will place what weight it thinks is appropriate upon each factor, depending upon the evidence and submissions made at the time. These factors are:
(a) the effect of the offence on the child; and
(b) the age of the child; and
(c) the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and
(d) the need to protect the child, or other children, from the risk of the offender reoffending; and
(e) any relationship between the offender and the child; and
(f) the need to deter similar behaviour by other offenders to protect children; and
(g) the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and
(h) the offender’s antecedents, age and character; and
(i) any remorse or lack of remorse of the offender; and
(j) any medical, psychiatric, prison or other relevant report relating to the offender; and
(k) anything else about the safety of children under 16 the sentencing court considers relevant.
As can be seen, the discretion is wide and varied.
If exceptional circumstances can be demonstrated, then the person is not automatically subjected to a term of actual imprisonment. This also means that penalties other thana term of imprisonment (whether suspended or actual) can be imposed (e.g. probation or a fine), depending upon the factual circumstances.
Recently, Mr Williams represented one of our clients who appeared in the Brisbane District Court on 21 September 2020 (after the amendments). Our client’s level of offending was characterised as quite low given only 5 videos and 4 images (9 CEM files in total) were located.
We argued that our client’s low-level offending should be characterised as exceptional circumstances pointing to cases such as R v BCX QCA 188 and R v GAW QCA 166. We were successful in this argument resulting in our client receiving a fine of $2,000.00.
Other penalties such as probation and suspended sentences are still available if exceptional circumstances can be demonstrated.
It should be remembered however that even if a person can avoid a term of actual imprisonment by demonstrating exceptional circumstances, the reportable offender provisions under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004may still apply depending upon the sentence and conviction.
Mr Williams has over a decade of experience in representing client’s in CEM-related matters and regularly appears in all Queensland Courts across the State.