The exploitation of children has been inadvertently facilitated and enhanced by the availability of the internet. Offences targeting those who exploit children via the use of services such as the internet, telephone and the post are contained in Commonwealth legislation. Commonwealth legislation creates a number of offences relating to child pornography material, child abuse material, and grooming and procuring persons under the age of 16 to engage in, or submit to, sexual activity.
The purpose of the telecommunications based child exploitation offences is to cover the range of activities that a person can engage in when using the internet, email, mobile phones and other applications to deal with child pornography and child abuse material. These activities include viewing, copying, downloading, sending, exchanging material and making available for viewing, copying or downloading. It also includes offences for using a carriage service to engage in sexual activity with a child, or causing a child to engage in sexual activity with another person.
The grooming and procuring offences are targeted at offenders, who use the anonymity of the internet to win the trust of a child as a first step to the future sexual abuse of the child, and to allow law enforcement to intervene before a child is actually assaulted.
High maximum penalties for some of these offences reflect the community’s abhorrence of this conduct. There are higher maximum penalties for aggravated offences, such as where the offending conduct occurs on three or more occasions and involves two or more people, or where the sexual activity involves a child with a mental impairment or a child who is under the care, supervision or authority of the defendant.
These offences are increasingly becoming more sophisticated through the use of networks to distribute material, the protection of material by encryption and on-line access to the material. Cases can involve hundreds of thousands of depraved and disturbing images of children and the scale and seriousness of this industry poses challenges for investigation and prosecution. Prosecuting these offences often involves complex technical and evidentiary issues. The CDPP works closely with the Australian Federal Police, Australian Customs and Border Protection Service and other law enforcement agencies in this area.
Dealing with such material requires investigators, prosecutors and courts to hear or read stories of a disturbing nature and may involve viewing pornographic movies, photos and/or graphic material depicting explicit sexual acts involving serious harm to children. The CDPP has established an Employee Wellbeing Programme designed to implement practical policies and guidelines to support employees who may be at risk of experiencing trauma as a result of exposure to potentially distressing materials.
Division 272 of the Criminal Code focuses on child sex offences committed outside Australia by Australian citizens and permanent residents, ranging from possessing child pornography and child abuse material to engaging in sexual activity overseas with children under the age of 16. It is also an offence to encourage or benefit from these types of offences or to do an act preparatory to committing a child sex tourism offence.
Commonly Used Offences
- s.474.19(1) Criminal Code – use carriage service for child pornography material
- s.474.26(1) Criminal Code – use carriage service to procure person under 16 years of age
- s.474.27A(1) Criminal Code – use carriage service to transmit indecent communication to person under 16 years of age
- s.233BAB(5) Customs Act 1901 – importation of tier 2 goods
The maximum penalty for using a carriage service for child pornography material and using a carriage service to procure persons under 16 years of age is 15 years imprisonment.
The maximum penalty for using a carriage service to transmit indecent communication to person under 16 years of age is 7 years imprisonment.
The maximum penalty for importing tier 2 goods is 10 years imprisonment.
The CDPP provides sentencing data to the Commonwealth Sentencing Database (CSD). Permission to access the CSD can be obtained at http://njca.com.au/sentencing/.
National Legal Directions
Relevant CDPP Policies
- Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010
This Act commenced on 15 April 2010. It amended some of the offences contained in the Criminal Code and inserted a provision under section 475.1B, allowing a rebuttable presumption for ‘using a carriage service’, as well as the application of absolute liability for the physical element of using a carriage service.
- DPP v FM  VSCA 129
- R v Nahlous  NSWCCA 90
- R v Black Qld Supreme Court 1.3.13
- R v Schultz Qld Supreme Court 19.3.13
Child Pornography cases
- DPP v Latham  TASSC 101
- R v Booth  QCA 268
- DPP (Cth) v D’Alessandro  VSCA 60
- R v Gordon; ex par Cth DPP  QCA 209
- R v Gent (2005) 162 A Crim R 29
- R v Sykes  QCA 267
- R v Mara  QCA 208
- Tector v The Queen (2008) 186 A Crim R 133
- R v Poynder  NSWCCA 157
- R v Gajjar (2008) 192 A Crim R 76
- DPP (Cth) v Hizhnikov (2008) 192 A Crim R 76
- Rampley v R NSWCCA 293
- Cooper v The Queen  VSCA 32
- R v Kennings  QCA 162
- Lee- the recent WA court of appeal decision, 19.09.13.
- R v Cruz  QCA 90