CHILD EXPLOITATION MATERIAL
We are Brisbane criminal lawyers providing specialised defence representation for persons
charged with Child Exploitation Material (CEM) offences. Being charged with a child
exploitation material offence is serious. Choosing the right criminal lawyer is important, as
your future depends on it. The Criminal Lawyers Brisbane Group are experts in these kinds
of offences, and we are here to stand by your side and defend you.
We are Brisbane criminal lawyers providing specialised defence representation for persons charged with Child Exploitation Material (CEM) offences. Being charged is serious. Choosing the right criminal lawyer is essential, as your future depends on it. The Criminal Lawyers Brisbane Group are experts in these kinds of offences, and we are here to stand by your side and defend you. If you need legal advice, call (07) 3153 6215.
What is Child Exploitation Material?
Child Exploitation Material (CEM) is commonly referred to as child pornography. Police can prosecute child pornography under State or Commonwealth Laws.
Section 207A of the Queensland Criminal Code defines CEM as material describing or depicting a person or a representation of a person who is, or apparently is, a child under 16 years:
- in a sexual context (for example, sexual activity); or
- in an offensive or demeaning context; or
- being subjected to abuse, cruelty or torture.
The material must likely offend a reasonable adult.
CEM may be found in photos, videos, recordings, drawings, or text (such as stories).
The Commonwealth Criminal Code refers to CEM as child abuse material. There is a broad definition of what falls within the content of child abuse material. In particular, the material can include a person who is or appears to be under the age of 18 years. This starkly contrasts the law in Queensland, where CEM is limited to persons who are or appear to be under 16 years of age.
Police Investigation of Child Exploitation Material Offences
There are a few ways police identify persons they believe may have CEM, and these are:
- Someone telling police they believe a person has it.
- Someone providing police with a username or email address used by someone they believe has CEM.
- Police assume an online identity to communicate with persons online to locate offenders.
- Police use law enforcement software to identify the sharing of CEM on peer-to-peer networks and track the Internet Protocol Address used to download the CEM.
When people share CEM on peer-to-peer networks, police can identify the Internet Protocol Address (IPA) of the person who has downloaded the CEM. An IPA is a unique sequence of numbers identifying a device on the internet or a network. Police then use the IPA to locate the person’s physical address using the internet to download the CEM. Once police know the person’s physical address using the internet to download the CEM, they will get a search warrant to search the person’s address.
The police who execute search warrants relating to CEM will either be from Taskforce Argos (a specialist unit of the Queensland Police Service investigating child exploitation and abuse) or police from the Child Protection Investigation Unit (CPIU). There will often be several police officers present during the execution of a search warrant. The police officers will search the premises to locate devices they believe may contain CEM. Police use triage software to perform a preliminary examination on a device to determine if it contains CEM.
During the search of a person’s address, police will locate and seize items such as:
- Hard drives.
- Electronic storage devices.
- Mobile phones.
During the execution of a search warrant, police will record the search on a device such as a GoPro. It is important to remember that anything you say to the police may be used against you in Court. It is quite common for police to ask persons for information or questions about what they locate during the search.
Suppose police locate CEM on any devices in a person’s possession. In that case, they will arrest them and take them to the police station or watchhouse. When the person is taken back to the police station, the police may offer them the opportunity to participate in an interview with them. The purpose of the interview is for the police to attempt to obtain information to assist them in prosecuting the person arrested. It is important to remember you do not have to participate in an interview with police. If you do participate in an interview, you need to be aware anything you say during it may be used against you in Court.
Categorisation of CEM
When a person is prosecuted for CEM, the primary relevant features are the number of images/videos possessed and the type of content depicted in the photos/videos (how severe the content is).
LACE (Law Enforcement Against Child Exploitation) Categorisation System
The Queensland police use the INTERPOL International Classification System. The INTERPOL International Classification System is a four-category system differentiating between 2 types of CEM and includes non-illegal and ignorable images.
- INTERPOL Baseline- Depicts 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.
- Jurisdictionally defined CEM not classed as Baseline – Files illegal according to local legislation, either by age or content.
- Related non-illegal files- An image forming part of a CEM series, but which is not in its own right illegal, although it may contain essential clues or identifying information to assist investigations about category one or two images.
- Ignorable All other (legal) material that does not fit into categories one to three.
The reports prepared using the INTERPOL International Classification System are known as LACE (Law Enforcement Against Child Exploitation) Reports. The LACE Report refers to the BlueBear LACE forensic software used worldwide by law enforcement agencies. The software extracts files from devices and categorises images and videos according to their hash value. Each file on a device has a hash value, a unique set of numerical values. A hash value is like a fingerprint to identify unique content. If the file is altered or changed, the hash value changes. Once an image or video has been identified as being CEM, the hash value for the file is stored in a library, which is a database of known CEM. The database of hash values is then used as a reference database for police when comparing files located on devices.
The BlueBear LACE forensic software can scan files on a device and determine if they are CEM based on their hash values. This software saves the police a significant amount of time in grading CEM.
Penalties for Child Exploitation Material Offences
If you are convicted of possessing child exploitation material, the maximum penalty is 14 years imprisonment. Suppose you are found to have used a hidden network or an anonymising service to commit the offence. In that case, the maximum penalty increases to 20 years imprisonment. Some child exploitation material offences carry a maximum of 25 years imprisonment.
In addition to any penalty imposed by the Court, a person convicted of possessing CEM will be subject to Child Protection Offender Reporting obligations. This is commonly known as having your name included on the “sex offender register”.
Imprisonment as a penalty for Possession of CEM
If you are convicted of a child exploitation material offence, you can expect to spend some time in prison. This is because the law says a defendant must be sentenced to actual imprisonment. However, there is an exception to this rule: if you can show the Court there are exceptional circumstances. This means unless you show the Court there are exceptional circumstances, you will be sent to serve time in actual imprisonment.
In deciding if there are exceptional circumstances, this will turn on the facts of each case. Section 9(6) of the sets out things the Court must regard in deciding this issue. Penalties and Sentences Act
If the Court is satisfied there are exceptional circumstances, penalties can include:
- Term of imprisonment with immediate parole.
- Suspended Sentence.
What the Court Will Consider When Sentencing
When a Court sentences a person for possessing child exploitation material, the primary features it will look at are:
- The number of CEM images and videos.
- The category/categories of the CEM.
Section 9 of the Penalties and Sentences Act sets out various things a Court must consider when they sentence someone for an offence. Of specific relevance for child exploitation material offences is you must serve time in prison unless there are exceptional circumstances.
So what will the Court look at in deciding if there are exceptional circumstances?
Things the Court must consider are:
(a) the effect of the offence on the child; and
(b) the age of the child; and
(c) the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and
(d) the need to protect the child, or other children, from the
risk of the offender reoffending; and
(e) any relationship between the offender and the child; and
(f) the need to deter similar behaviour by other offenders to protect children; and
(g) 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; and
(h) the offender’s antecedents, age and character; and
(i) any remorse or lack of remorse of the offender; and
(j) any medical, psychiatric, prison or other relevant report relating to the offender; and
(k) anything else about the safety of children under 16 the sentencing court considers relevant.
As you will probably gather, there is no hard and fast rule regarding when exceptional circumstances will be established. This issue is decided on a case-by-case basis.
Becoming A Reportable Offender
One of the consequences of being found guilty of a CEM offence is you become a reportable child sex offender under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004. As part of being a reportable child sex offender, you must provide the police with certain information and report to them certain information within specified timeframes. Suppose you do not report the relevant information within the specified timeframe. In that case, this is an offence, and you can be charged with breaching your obligations. You can read more about the sex offender register here.
Why Choose the Criminal Lawyers Brisbane Group?
When choosing a criminal lawyer to represent you for your CEM offence, you must have someone experienced. Many criminal lawyers will not look at the material nor delve into the content of the reports prepared by police- they accept them at face value. We do not accept what the police serve up. We challenge it. What a police officer may say is a child exploitation image or video may be up for debate. In our experience, police often categorise an image clearly, not CEM. In such circumstances, after conducting a preliminary analysis, we can negotiate with the prosecution to reduce the amount of CEM they say they located.
Our specialised approach to CEM and CAM offences
We know everyone makes mistakes in life. If you have committed a CEM offence, we do not judge you – we are here to help give you legal advice. If you plead guilty to a CEM offence, you must have our esteemed lawyers guiding you each step of the way. We will work with you to place you in the best possible situation to achieve the best sentence result. By the time your sentence date comes around, we will have done all we can to persuade the Judge of exceptional circumstances in your case and avoid jail.
One of the critical things a person pleading guilty to a CEM offence can do is get counselling and a pre-sentence report. We have specialised psychologists we refer clients to who can work with them and provide pre-sentence reports for the Judges. Pre-sentence reports can provide sentencing Judges with necessary information regarding your background and any underlying psychological conditions contributing to your offending.
We have the expertise to do this if you want to challenge a CEM offence. We will review your case with a fine-tooth comb, leaving no stone unturned. With our criminal lawyers on your side, you know you have the best chance of being found not guilty.
No matter your situation, we are here to help you. Please pick up the phone and call us on (07) 3153 6215 and speak to one of our experts today.