Possessing Child Exploitation Material

If you knowingly possess child exploitation material, you may be charged with an offence.

“Child Exploitation Material” is defined as material that, in a way that is likely to cause offence to a reasonable adult, describes or depicts someone who is, or apparently is, a child under 16 years:–

1. In a sexual context, including for example, engaging in a sexual activity; or

2. In an offensive or demeaning context; or

3. Being subject to abuse, cruelty or torture.

Which Court will hear my matter?

If you are charged with possessing child exploitation material, your charge will be dealt with in the District Court.

Maximum Penalty

If you are charged with possessing child exploitation material, the maximum penalty is 5 years imprisonment.

If you are charged with possessing child exploitation material, you should seek legal advice immediately.

Distributing Child Exploitation Material

The Offence

If you distribute child exploitation material, you may be charged with an offence.

“Child exploitation material” is defined as material that, in a way that is likely to cause offence to a reasonable adult, describes or depicts someone who is, or apparently is, a child under 16 years:–

1. In a sexual context, including for example, engaging in a sexual activity; or

2. In an offensive or demeaning context; or

3. Being subject to abuse, cruelty, or torture.

“Distribute” includes:-

1. To communicate, exhibit, send, supply or transmit Child exploitation material to someone, whether to a particular person or not;

2. To make Child exploitation material available for access by someone, where a particular person or not;

3. To enter into an arrangement to agree to do something in paragraph 1 or 2; and

4. To attempt to distribute Child exploitation material.

Which Court will hear my matter?

If you are charged with distributing child exploitation material, your matter will be dealt with in the District Court.

What is the maximum penalty?

If you are charged with distributing child exploitation material, the maximum penalty that you will face is 10 years imprisonment.

If you are charged with distributing child exploitation material, you should seek legal advice immediately.

Using Internet to procure child under 16

If you use electronic communication with intent to do any of the following, you may be charged with an offence:-

1. Procure a child under the age of 16, or someone you believe is under the age of 16, to engage in a sexual act; or

2. Expose, without legitimate reason, a child under the age of 16, or someone you believe is under the age of 16, to any indecent matter.

You engage in a sexual act if you:-

1. Allow a sexual act to be done to your body; or

2. Do a sexual act to your own body or other persons; or

3. Otherwise engage in an act of an indecent nature.

What does this mean?

If the accused is an adult and attempts to entice or recruit a person under the age of 16 (or a person the accused believes is under the age of 16) to engage in a sexual act or expose them to an indecent matter (without a legitimate reason) they commit an offence.

Which Court will hear my matter?

If you are charged with using the internet to procure a child under 16 years, your offence will be dealt with in the District Court.

What is the maximum penalty?

If you are charged with using the internet to procure a child under 16 years, the maximum penalty is 5 years imprisonment. If the child is under 12, or if you believed the child is was under 12, the maximum penalty increases to 10 years imprisonment.

If you are charged with using the internet to procure a child under 16 years, you should seek legal advice immediately.

Incest

You may be charged with incest if:-

1. You have carnal knowledge (sexual intercourse) with your offspring or other lineal descendants, or with a sibling, parent, grandparent, uncle, aunt, nephew or niece; and

2. You know that the other person bears that relationship to you or some relationship of that type to you.

It is irrelevant whether or not you had the other person’s consent. Your offspring or other lineal descendants, or a sibling or parent includes:-

1. Half relationships;

2. Adoptive relationships; and

3. Step arrangements (including de facto cohabitation, foster relationships and legal arrangements).

Which Court will hear my matter?

If you are charged with incest, your matter will be dealt with in the District Court.

What is the maximum penalty?

If you are charged with incest, the maximum penalty is life imprisonment.

If you are charged with incest, you should seek legal advice immediately.

Indecent treatment of children under 16

You may be charged with indecent treatment of a child under 16 if you:-

1. Unlawfully and indecently deals with a child; or

2. Unlawfully procure a child to commit an indecent act; or

3. Unlawfully permits yourself to be indecently dealt with; or

4. Wilfully and indecently exposes a child to an indecent act by yourself or another person; or

5. Without legitimate reason, wilfully exposes a child to any indecent object or any indecent film, videotape, audiotape, picture, photograph or written or printed material; or

6. Without legitimate reason takes any indecent photograph or records, by means of any device, any indecent visual images of a child.

‘Indecent’ means contrary to the ordinary standards of morality in respectable people within the community and for the purposes of this offence is often thought to have a sexual connotation.

Which Court will hear my matter?

If you are charged with indecent treatment of a child under 16, your matter will be dealt with in the District Court.

What is the maximum penalty?

If you are charged with indecent treatment of a child under 16, the maximum penalty will depend upon the age of the child and the relationship between you and the child. Particularly: -

1. Where the child is above the age of 12 – 14 years imprisonment;

2. Where the child is below the age of 12 – 20 years imprisonment;

3. Where the child is, to your knowledge, your lineal descendant or you are the guardian or temporary carer of the child – 20 years imprisonment.

If you are charged with indecent treatment of a child under 16, you should seek legal advice immediately.

Sexual Assault

You may be charged with sexual assault if you:-

1. Unlawfully and indecently assault another person; or

2. Procure another person, without the person’s consent –

   • To commit an act of gross indecency; or

   • To witness an act of gross indecency or that of any other person.

‘Indecent’ means contrary to the ordinary standards of morality in respectable people within the community and for the purposes of this offence is often thought to have a sexual connotation.

Which court will hear my matter?

If your matter does not include a circumstance of aggravation, it will be heard in the Magistrates Court, unless you choose the matter to be dealt with in the District Court.

If your charge includes a circumstance of aggravation, it will be dealt with in the District Court.

What is the maximum penalty?

If you are charged with sexual assault, the maximum penalty is 10 years imprisonment.

However, where there is a circumstance of aggravation, the maximum penalty increases to 14 years of life imprisonment. For example:-

1. If the act of gross indecency or indecent assault includes bringing into contact any part of the genitalia or the anus of a person with any part of the mouth of a person – 14 years imprisonment; or

2. If immediately prior, during or immediately after the offence you are or pretends to be armed with a weapon or is in the company of another person – life imprisonment.

If you are charged with sexual assault, you should seek legal advice immediately.

Rape

You may be charged with rape if :-

1. You have carnal knowledge (sexual intercourse by way of penile penetration) with another person, without the other person’s consent; or

2. You penetrate the vulva, vagina, or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis, without the other person’s consent; or

3. You penetrate the mouth of the other person to any extent with the person’s penis without the other person's consent.

A child under the age of 12 years is incapable of giving consent.

Which court will hear my matter?

If you are charged with rape, your charge will be dealt with in the District Court.

What is the maximum Penalty?

If you are charged with rape, you will face a maximum penalty of life imprisonment.

If you are charged with rape, you should seek legal advice immediately.

“Revenge Porn” Offences

The Offences

Distributing Intimate Images

If you distribute images of a person without that person’s consent and in a way that would reasonably cause the person distress, you may be charged with distribution of intimate images.

It is irrelevant whether you distributed the images intended to cause distress or actually caused distress.

“Intimate images” are defined as including:

1. A person engaged in a sexual act.

2. The genital or anal region when it is bare or covered only by underwear.

3. The bare breasts of a female.

4. An image that has been altered to appear to show any of the above.

This includes an image that has been digitally obscured.

Distributing Prohibited Visual Recordings

If you distribute prohibited visual recordings of a person, without the person’s consent, you may be charged with distribution of prohibited visual recordings.

Prohibited visual recordings include:-

1. A recording of a person engaged in a private act, in circumstances where a person would be expected to be afforded privacy; and

2. A recording showing a person’s genital or anal region when it is bare or covered only by underwear, made in circumstances where a person would expect to be afforded privacy.

Threats to Distribute Images or Recordings

You may be charged with distributing images or recordings If you threaten to distribute intimate images or a prohibited visual recording of a person:-

1. Without the person’s consent; and

2. In a way that would reasonably cause the person distress; and

3. In a way that would reasonably cause the other person fear of the threat being carried out.

For this offence, it is irrelevant whether the intimate image or recording actually exists and whether the person making the threat intends to cause fear or actually causes such fear.

Consent for these purposes means free and voluntarily given agreement by a person with the cognitive capacity to consent. A person under 16 is incapable of giving consent for the purpose of these provisions.

If you are charged with any of these offences, the Court can order that you remove, delete or destroy the intimate images or prohibited visual recording involved within a certain timeframe. If you fail to comply with this order, you may be found guilty of a further offence, punishable by a maximum penalty of 2 years imprisonment.

Which court will hear my matter?

If you are charged with any of these offences, your matter will be deal with in the Magistrates Court.

What is the maximum penalty?

If you are charged with any of these offences, the maximum penalty is 3 years imprisonment.

If you are charged with any of these offences, you should seek legal advice immediately.