Possess or Control Child Abuse Material Obtained Using Carriage Service

In New South Wales, it is an offence to possess or control child abuse material which was obtained or accessed using a carriage service. The maximum penalty for this charge is 15 years imprisonment. 

What is Possess or Control Child Abuse Material Obtained using Carriage Service?

The legislation describes the offence of ‘Possess or Control Child Abuse Material Obtained using Carriage Service’ under Section 474.22A of the Criminal Code Act 1995 (Cth) which defines that:

Child abuse material includes any material that depicts a child in a sexual pose or engaging in sexual activity, or material that is offensive in nature.

‘Carriage Service’ includes services for carrying communications by means of guided/and or unguided electromagnetic energy, such as telephone calls, text messages and internet transmissions. 

As this is a Commonwealth offence, it applies in all states and territories of Australia. 

The following acts might constitute Possession or Control of Child Abuse Material Obtained using Carriage Service:

• Requesting and being emailed a video containing a child posing sexually
• Taking a photo using your phone camera of a 13 year old who is naked

What must be proven?

For a person to be found guilty of Possess or Control Child Abuse Material Obtained using Carriage Service, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• That you had possession or control of material; and
• The material was in the form of data held in a computer or contained in a data storage device; and
• The material was child abuse material; and
• You engaged in the conduct voluntarily; and
• You intended to engage in the conduct of possession and control.

If the Prosecution do not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

This offence is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court, and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.  

Possible Defences to Possess or Control Child Abuse Material Obtained using Carriage Service

The following defences may be available for a Possess or Control Child Abuse Material Obtained using Carriage Service charge:

• That you could not have reasonably known that you had possession or control of child abuse material;
• Unsolicited receipt and possession;
• Material depicted is of you.

Common Questions about Possession of Child Abuse Material

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely. 

A Court can impose any of the following penalties for a Possess or Control Child Abuse Material Obtained using Carriage Service charge:

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for this offence might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover, a conviction for an offence of this nature can completely rule out certain career paths such as teaching and a range of government employment options. Child sex offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol for a Possession of Child Abuse Material charge?

There is a very high risk of a gaol sentence for these offences, the majority of people charged with these offences end up with a full-time gaol sentence. It is incredibly important that you get expert advice to assist you if you are facing these kinds of charges. There is a possibility, depending on the circumstances, that a different sentence could be imposed, but it is important you get help.

What should I do if I receive unsolicited child abuse material?

If you receive unsolicited child abuse material, please contact Armstrong Legal immediately. 

What are the long-term consequences of being found guilty of this offence?

• You may be placed on the Child Protection Register for a period of 10-15 years or for life depending on the severity of the offence/if you are a repeat offender. 
• An automatic and permanent bar will be placed on your Working with Child Check/your ability to obtain a Working with Children Check.
• Travel restrictions may be placed on you as you will have to report any international travel plans to the Police, and you may be denied access to various countries.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.