Published by Geoff Harrison | 4 June 2024
Offences related to using a carriage service for Child Abuse Material (CAM) are found under Part 10.6, Subdivision D of the Criminal Code Act 1995 (Cth) ('the Act') betweem ss474.22 and 474.24C. The sentences for such offences can be between 15 years and 30 years imprisonment with a minimum sentence of between 5 and 7 years imprisonment for aggravated forms of the offence see: s16AAA Crimes Act 1914 (Cth) table below. Minimum sentences were recently considered in the High Court: Hurt v The King; Hurt v The King; Delzotto v The King [2024] HCA 8. The definition of CAM is found in the definitions section of the Act at s473.1 and is set out below.
There have been a number of systems used to categorise or classify Child Abuse Material (CAM) or Child Exploitation Material (CEM), such as the COPINE scale, the Oliver Scale and the Interpol Baseline Scale. Arguably, the most used is the Interpol Baseline Scale which has four categories:
1. Interpol Baseline—depicting a real prepubescent child (under the age of approximately 13 years) and the child is involved in a sexual act, is witnessing a sexual act or the material is focused/concentrated on the child’s anal or genital region.
2. Other illegal files—files that are illegal according to local legislation either by way of age or content.
3. Related non-illegal files—an image that forms part of a CEM series but which is not in its own right illegal, although it may contain important clues or identifying information to assist investigations in relation to category 1 or 2 images.
4. Ignorable—all other (legal) material which does not fit into categories 1–3.
Other Sources:
Cases:
Extracted Legislation:
s473.1 Definitions:
...
"child abuse material" means:
(a) material that depicts a person, or a representation of a person, who:
(i) is, or appears to be, under 18 years of age; and
(ii) is, or appears to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(b) material that describes a person who:
(i) is, or is implied to be, under 18 years of age; and
(ii) is, or is implied to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(c) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:
(i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(d) material the dominant characteristic of which is the depiction, for a sexual purpose, of:
(i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or
(ii) a representation of such a sexual organ or anal region; or
(iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;
in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(e) material that describes a person who is, or is implied to be, under 18 years of age and who:
(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(f) material that describes:
(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or
(ii) the breasts of a female person who is, or is implied to be, under 18 years of age;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(g) material that is a doll or other object that resembles:
(i) a person who is, or appears to be, under 18 years of age; or
(ii) a part of the body of such a person;
if a reasonable person would consider it likely that the material is intended to be used by a person to simulate sexual intercourse.
Subdivision D--Offences relating to use of carriage service for child abuse material
474.22 Using a carriage service for child abuse material
(1) A person commits an offence if:
(a) the person:
(i) accesses material; or
(ii) causes material to be transmitted to himself or herself; or
(iii) transmits, makes available, publishes, distributes, advertises or promotes material; or
(iv) solicits material; and
(aa) the person does so using a carriage service; and
(b) the material is child abuse material.
Penalty: Imprisonment for 15 years.
(2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):
(a) intention is the fault element for the conduct referred to in paragraph (1)(a);
(b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b).
Note: For the meaning of intention and recklessness see sections 5.2 and 5.4.
(2A) Absolute liability applies to paragraph (1)(aa).
Note: For absolute liability, see section 6.2.
(3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.24 in relation to this section.
474.22A Possessing or controlling child abuse material obtained or accessed using a carriage service
(1) A person commits an offence if:
(a) the person has possession or control of material; and
(b) the material is in the form of data held in a computer or contained in a data storage device; and
(c) the person used a carriage service to obtain or access the material; and
(d) the material is child abuse material.
Penalty: Imprisonment for 15 years.
(2) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
(3) If the prosecution proves beyond reasonable doubt the matters mentioned in paragraphs (1)(a), (b) and (d), then it is presumed, unless the person proves to the contrary, that the person:
(a) obtained or accessed the material; and
(b) used a carriage service to obtain or access the material.
Note: A defendant bears a legal burden in relation to the matters in this subsection: see section 13.4.
474.23 Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material is child abuse material; and
(c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section 474.22 (using a carriage service for child abuse material).
Penalty: Imprisonment for 15 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.22 (using a carriage service for child abuse material) is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
474.23A Conduct for the purposes of electronic service used for child abuse material
(1) A person commits an offence if:
(a) the person engages in any of the following conduct:
(i) creating, developing, altering or maintaining an electronic service;
(ii) controlling or moderating an electronic service;
(iii) making available, advertising or promoting an electronic service;
(iv) assisting in doing anything covered by a preceding subparagraph; and
(b) the person does so with the intention that the electronic service be used:
(i) by that person; or
(ii) by another person;
in committing, or facilitating the commission of, an offence against section 474.22, 474.22A or 474.23.
Penalty: Imprisonment for 20 years.
(2) A person may be found guilty of an offence against subsection (1) even if:
(a) committing the offence against section 474.22, 474.22A or 474.23 is impossible; or
(b) the electronic service is incapable of being used as mentioned in paragraph (1)(b):
(i) at the time the person engages in the conduct mentioned in paragraph (1)(a); or
(ii) at any other time.
(3) It is not an offence to attempt to commit an offence against subsection (1).
(4) In this Code:
"electronic service" means a service a purpose of which is to:
(a) allow persons to access material using a carriage service; or
(b) deliver material to persons having equipment appropriate for receiving that material, where the delivery of the service is by means of a carriage service;
but does not include:
(c) a broadcasting service (within the meaning of the Broadcasting Services Act 1992 ); or
(d) a datacasting service (within the meaning of that Act).
474.24 Defences in respect of child abuse material
(1) A person is not criminally responsible for an offence against section 474.22, 474.22A, 474.23 or 474.23A because of engaging in particular conduct if the conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of public benefit.
In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person's motives in engaging in the conduct are irrelevant.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(2) For the purposes of subsection (1), conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:
(a) enforcing a law of the Commonwealth, a State or a Territory; or
(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or
(c) the administration of justice; or
(d) conducting scientific, medical or educational research that has been approved by the AFP Minister in writing for the purposes of this section.
(3) A person is not criminally responsible for an offence against section 474.22, 474.22A, 474.23 or 474.23A if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(4) A person is not criminally responsible for an offence against section 474.22, 474.22A, 474.23 or 474.23A if the person engages in the conduct in good faith for the sole purpose of:
(a) assisting the eSafety Commissioner to perform the functions, or exercise the powers, conferred on the eSafety Commissioner by Part 9 of the Online Safety Act 2021 ; or
(b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:
(i) an industry code registered under Division 7 of Part 9 of the Online Safety Act 2021 ; or
(ii) an industry standard registered under Division 7 of Part 9 of the Online Safety Act 2021 .
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
474.24A Aggravated offence--offence involving conduct on 3 or more occasions and 2 or more people
(1) A person commits an offence against this section if:
(a) the person commits an offence against one or more of the following provisions on 3 or more separate occasions:
(iii) section 474.22 (using a carriage service for child abuse material);
(iiia) section 474.22A (possessing or controlling child abuse material obtained or accessed using a carriage service);
(iv) section 474.23 (possessing etc. child abuse material for use through a carriage service); and
(b) the commission of each such offence involves 2 or more people.
Penalty: Imprisonment for 30 years.
(2) There is no fault element for any of the physical elements described in paragraph (1)(a) other than the fault elements (however described), if any, for the offence against section 474.22, 474.22A or 474.23.
(3) To avoid doubt, a person does not commit an offence against section 474.22, 474.22A or 474.23 for the purposes of paragraph (1)(a) if the person has a defence to that offence.
Offence or conduct need not be the same
(4) For the purposes of subsection (1), it is immaterial whether the offence, or the conduct constituting the offence, is the same on each occasion.
Double jeopardy etc.
(5) A person who has been convicted or acquitted of an offence (the aggravated offence ) against this section may not be convicted of an offence against section 474.22, 474.22A or 474.23 in relation to the conduct that constituted the aggravated offence.
(6) Subsection (5) does not prevent an alternative verdict under section 474.24B.
(7) A person who has been convicted or acquitted of an offence (the underlying offence ) against section 474.22, 474.22A or 474.23 may not be convicted of an offence against this section in relation to the conduct that constituted the underlying offence.
474.24B Alternative verdict if aggravated offence not proven
If, on a trial for an offence (the aggravated offence ) against subsection 474.24A(1), the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence (the underlying offence ) against section 474.22, 474.22A or 474.23;
it may find the defendant not guilty of the aggravated offence but guilty of the underlying offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
474.24C Consent to commencement of proceedings where defendant under 18
(1) Proceedings for an offence against this Subdivision must not be commenced without the consent of the Attorney - General if the defendant was under 18 at the time he or she allegedly engaged in the conduct constituting the offence.
(2) However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.
CRIMES ACT 1914 - SECT 16AAA Minimum penalties for certain offences
Minimum penalties for certain offences
Subject to section 16AAC, if a person is convicted of an offence described in column 1 of an item in the following table, the court must impose a sentence of imprisonment of at least the period specified in column 2 of that item.
Minimum penalty | ||
Item | Column 1 | Column 2 Sentence of imprisonment |
1 | offence against subsection 272.8(1) of the Criminal Code | 6 years |
2 | offence against subsection 272.8(2) of the Criminal Code | 6 years |
3 | offence against subsection 272.9(1) of the Criminal Code | 5 years |
4 | offence against subsection 272.9(2) of the Criminal Code | 5 years |
5 | offence against section 272.10 of the Criminal Code | 7 years |
6 | offence against section 272.11 of the Criminal Code | 7 years |
7 | offence against section 272.18 of the Criminal Code | 6 years |
8 | offence against section 272.19 of the Criminal Code | 6 years |
9 | offence against section 273.7 of the Criminal Code | 7 years |
10 | offence against section 471.22 of the Criminal Code | 7 years |
11 | offence against section 474.23A of the Criminal Code | 5 years |
12 | offence against section 474.24A of theCriminal Code | 7 years |
13 | offence against subsection 474.25A(1) of the Criminal Code | 5 years |
14 | offence against subsection 474.25A(2) of the Criminal Code | 5 years |
15 | offence against section 474.25B of theCriminal Code | 7 years |
CRIMES ACT 1914 - SECT 16AAC Exclusions and reductions--minimum penalties
Exclusions and reductions--minimum penalties
People aged under 18
(1) Section 16AAA and subsection 16AAB(2) do not apply to a person who was aged under 18 years when the offence that the relevant provision specifies a minimum penalty for was committed.
Reduction of minimum penalty
(2) A court may impose a sentence of imprisonment of less than the period specified in column 2 of an item of a table in section 16AAA or subsection 16AAB(2) only if the court considers it appropriate to reduce the sentence because of either or both of the following:
(a) the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty;
(b) the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence.
(3) If a court may reduce a sentence, the court may reduce the sentence as follows:
(a) if the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty--by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;
(b) if the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence--by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;
(c) if the court is taking into account both of the matters in paragraphs (a) and (b)--by an amount that is up to 50% of the period specified in column 2 of the applicable item in the relevant table.
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