Child pornography (CEM) — the new offences and changes to sentencing

Home / Knowledge Base / Child pornography (CEM) — the new offences and changes to sentencing

Recent changes to the law have led to the creation of two new offences relating to child abuse objects, as well as a tougher sentencing regime requiring exceptional circumstances to stay out of jail.

What’s changed?

On 14 September 2020, the Queensland Parliament passed the Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2000. The Act amends, among other things, the Criminal Code Act and the Penalties and Sentences Act. Relevantly, it created two new offences relating to child exploitation material (CEM), and changed the way the courts are required to sentence people charged with these offences.

What are the new offences?

The new offences relate to “child abuse objects” and are:

  • Section 228I — producing or supplying a child abuse object; and
  • Section 228J — possessing a child abuse object.

A child abuse object is basically a sex doll which looks like a child. The legal definition is found in the new s207A where it is defined as a “doll, robot or other object” which a reasonable adult would consider:

  • Is a representation or portrayal of a person, or part of a person, who is a child under 16 years; or
  • The predominant impression conveyed is that it is a representation or portrayal of a person, or part of a person, who is a child under 16 years, irrespective of whether it has adult characteristics; and
  • Has been used, or a reasonable adult would consider it is intended for use, in an indecent or sexual context including, for example, engaging in a sexual activity.

The maximum penalty for possessing a child sex doll is 14 years imprisonment. The same penalty applies for producing or supplying one, which increases to 20 years imprisonment if the production or supply is for a commercial purpose. Presumably the latter type of offence is one targeted at people who produce and sell these dolls online or by other means.

The definitions of producing or supplying have some similar characteristics to offences of producing or supplying drugs under the Drugs Misuse Act.

Produce includes “prepare, manufacture or package” and extends to an offer to produce or an offer to do anything in preparation for or in furtherance of, or for the purpose of, an act of producing.

 

Supply includes “give, distribute, sell or transport” and similarly extends to offers to supply or doing any acts in preparation for or in furtherance of, or for the purpose of, an act of supply.

These wide-reaching definitions mean that anyone involved in the supply chain relating to the production or supply of child sex dolls — whether they be a factory worker, delivery truck driver, or machinery operator — can be targeted by these new offences.

What are the changes to sentencing?

As part of the reforms, some fairly significant changes were made to the Penalties and Sentences Act. The primary change to the law is that a sentence of imprisonment is now no longer a sentence of last resort for child exploitation material offences. A sentence of actual imprisonment must be imposed unless there are “exceptional circumstances”.

The court must primarily have regard to a number of factors set out in ss7(a) to (g), which are set out below.

  • For CEM offences:
    • The nature of any material describing or depicting a child that the offence involved, including the apparent age of the child and any activity shown;
  • For child abuse object offences:
    • The nature of the doll, robot or other object representing or portraying a child that the offence involved, including the apparent age of the child;
    • The offender’s conduct or behaviour in relation to the material, doll, robot or other object that the offence involved;
    • Any relationship between the offender and the child the subject of the material, or represented or portrayed by the doll, robot or other object, that the offence involved;
  • The need to deter similar behaviour by other offenders to protect children;
  • 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;
  • The offender’s antecedents, age and character;
  • Any remorse or lack of remorse of the offender;
  • Any medical, psychiatric, prison or other relevant report relating to the offender;
  • Anything else about the safety of children under 16 the sentencing court considers relevant.

As a result, the assumption is is that actual prison should be expected and that remaining in the community is the exception to the rule. The focus at sentence will be on establishing there are some exceptional circumstances so that no actual time in prison should be ordered.

What are “exceptional circumstances”?

There is no definition of what this term means in the legislation. A number of cases have considered the issue in detail, with one clear principle being that exceptional circumstances may be established by the fact the offending is of such a low level so as to lead to such a finding (e.g. R v GAW [2015] QCA 166 at [2]-[3]).

More often than not, however, such a finding is generally only available when factors personal to the offender push the overall facts of the case into the realms of it being “exceptional”. What is required is a careful consideration of all of the circumstances in order to determine whether, alone or in aggregation, the facts constitute exceptional circumstances so as to warrant the conclusion that the offender should be spared imprisonment. As the Court of Appeal observed in R v BCX [2015] QCA 188 at [30]:

When undertaking such an assessment, it should not be thought that a combination of circumstances, none of which is individually exceptional, can never be regarded as exceptional, because it may be that it is only in combination that particular circumstances take on an exceptional quality.

The Court expanded upon this statement, observing the following at [32]-[36]:

  • Whether the circumstances in any given case justify a finding of exceptional circumstances will always be a matter for the discretionary judgment of the sentencing judge.
  • Whether exceptional circumstances are established on the facts of a particular case is a matter where reasonable judicial minds might very well differ. This is because such an assessment calls for a value judgment in respect of which, as Mason and Deane JJ said in Norbis v Norbis (1986) 55 CLR 499 there is “room for reasonable differences of opinion, no particular opinion being uniquely right”.
  • Any assessment whether exceptional circumstances exist in a particular case will need to be undertaken with the s9(6) [or 9(7) here] considerations at the forefront of the sentencing judge’s mind.
  • Sentencing by reference to s9(4) is not a “two-stage process” whereby the sentencing judge must first consider whether exceptional circumstances exist and then determine the sentence to be imposed. Rather, in the sentencing process, the court “must consider whether there are exceptional circumstances which, in the light of all the other aspects of the case including those described in [ss 9(5), 9(6) and 9(7)], warrant the imposition of a sentence which does not involve actual custody”. Viewed in this way, a finding whether exceptional circumstances exist is but one part of the overall process of “instinctive synthesis” discussed by McHugh J in Markarian v The Queen whereby each of the factors relevant to the sentence are identified and then weighed before a value judgment is made as to a sentence which is, in all of the circumstances of the case, appropriate.
  • It is inappropriate to conclude that a finding of exceptional circumstances, or not, in one case dictates that the same finding should be made in another.

So, with this in mind, it is vitally important to engage an experienced lawyer to ensure that the sentencing Judge agrees there are exceptional circumstances. Early engagement with psychologists and psychiatrists, and obtaining detailed and specialised pre-sentence reports will be the key to ensuring the case is considered exceptional.

Other flow on effects.

Just like the existing offences relating to child exploitation material, the new offences are “prescribed offences” under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). That means any conviction for these offences requires the offender to report their personal details to the relevant Queensland agency for a period of between 5 years and the rest of their life. This also applies to offences under the Commonwealth Criminal Code (the new section 273A.1 — possession of child-like sex dolls etc).

Also, the new offences are “driver disqualifying offences” under the Transport Operations (Passenger Transport) Act 1994 (Qld). Conviction for these offences makes the person ineligible to hold a driver authorisation enabling them to provide a public passenger service (i.e. Taxi/Uber/Lyft/Didi etc).

In addition, the offences are “current serious offences” under the Working with Children (Risk Management and Screening) Act 2000, which means a Blue Card is also out of reach following conviction.

In summary.

Inevitably, the penalties for these types of offences are only going to get more harsh. This is why it is so important to have an experienced lawyer on your side if you’ve been charged with a CEM offence. With us in your corner, you have the best chance to show the court that you meet the criteria for exceptional circumstances to avoid being sent to prison.

If you’d like to read more about our specialist experience in relation to CEM offences, you can do so by following this link, or you can contact us now to secure your future.

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