13 Jul Distributing Child Exploitation Material – Section s 219 – Criminal Code

s 219 – Distributing Child Exploitation Material

1. In this section –

Distribute child exploitation material, includes –

1. Communicate, exhibit, sell, send, supply, offer or transmit child exploitation material to another person, or enter intro agreement or arrangement to do so; or
2. Make child exploitation material available for access by electronic or other means by another person, or enter into an agreement or arrangement to do so.

2. A person who distributes child exploitation material is guilty of a crime and is liable to imprisonment for 10 years.
3. A person who has possession of child exploitation material with the intention of distributing the material is guilty of a crime and is liable to imprisonment for 10 years.

Elements of the Offence

• In order to be convicted of this offence you must be found guilty of distributing child exploitation material or having child exploitation material in your possession and intending to distribute
• “Child exploitation material” is defined in section 217A of the Criminal Code as:
  • Child pornography; or
  • Material that, in a way likely to offend a reasonable person, describes, depicts or represents a person ,or part of a person, who is, or appears to be a child –
    • In an offensive or demeaning context; or
    • Being subjected to abuse, cruelty or torture (whether or not in a sexual context);
  • “Child pornography” means material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or a part of a person, who is, or appears to be a child –
    • Engaging in sexual activity; or
    • In a sexual context;
  • “Material” includes –
    • Any object, picture, film, written or printed matter, data, or other thing; and
    • Any thing from which text, pictures, sound or data can be produced or reproduced, with or without the aid of anything else;
  • “Picture” includes an image, whether or not it is a computer generated image.
• This offence is strictly limited to where the offender has distributed the child exploitation material.
• Furthermore, if you had the child exploitation material and the Police have found proof that you have intended to distribute but no evidence of actual distribution you could still be convicted.

Typical Circumstances of the Offence

• From the legislation, you can see that the child exploitation material can be in one of many forms, including written, digital photos, and film.
• In terms of what makes up the actual child exploitation material, there is a wide range in the type of material that can be classed as this.
• Distribution can take many forms, such as through email, uploading to websites, and postage.
• When cautioned for this offence the Police will seize the material and potentially their phone and computer in order to search them for further evidence of child exploitation material.
• Materials seized will be used to try to prove that you had distributed the child exploitation material or that you intended to.

Possible Defences

• One way of defending the charge is to deny the facts constituting the offence.
• There may be room to enter into negotiations with the police to try to argue that whilst you had possession of the child exploitation material, you never distributed nor intended to distribute it. This could potentially result in a lesser sentence, as a possession charge comes with a lower maximum penalty than distributing charge.
• After engaging us as your legal representatives we will advise on whether we can enter into negotiations with the Police on your behalf to improve your outcome.

Possible Penalties and Sentences

• A person convicted of distributing child exploitation material is guilty of a crime and is liable to imprisonment for 10 years.
• A term of immediate imprisonment is a likely outcome for a conviction of this type of offence.
• The length of the term of imprisonment can vary greatly depending on the nature and type of child exploitation material.
• However, if you retain us our expert criminal defence lawyers we will be able to draft sentencing submissions that are vital in terms of ensuring you obtain the best sentencing outcome.

If you have been charged with this offence it is important to obtain legal advice as soon as possible. Book an initial appointment with us for expert legal advice.