Possess Child Pornography – guilty plea - Section 10

Published 24 Oct 2011

Criminal Lawyers Sydney and Parramatta Offices

Criminal Matter – Criminal Offence – Possess Child Pornography – guilty plea - Section 10

Nyman Gibson Stewart

Criminal Defence Lawyers

Downing Centre Local Court

Represented by Solicitor: Shaun Mortimer

Facts – Our client, who was a qualified Doctor, was visited by Australian Federal Police with a search warrant on suspicion of possessing child pornography. The Police seized several computers and numerous external storage devices. These items were analyzed by the Police, and a large volume of pornography was found, none of which depicted real children. However, located amongst this volume of pornography, the Police found 34 single jpeg files which depicted child characters out of several popular cartoon programs, including The Simpsons and The Jetsons. As a result, he was charged with Possession of Child Pornography, contrary to section 91H of the Crimes Act 1900.

Result – The initial question in this case was whether the definition of child pornography covered depiction of children in cartoon form. A recent authority from the NSW Supreme Court clarified this question in the affirmative, as so long as the cartoons depicted people, then if those people were depicted as children, images of a pornographic nature do constitute child pornography. Our client, who downloaded these images several years before as they were humorous, was thus placed in a difficult position, and accordingly pleaded guilty to this charge. In order to save his career, and to avoid the consequence of becoming a registered sex offender, he needed the charges to be dispensed with without a conviction being recorded. The Prosecution argued that our client should not only be convicted, but also that he should be considered for a custodial penalty, given the need to deter people from committing offences of this nature. In defence of our client, it was submitted that the quantity and character of the material made this case fall at the lowest level of seriousness. Furthermore, his good character, clean criminal record, and significant damage that would be caused to his career and family if a conviction was recorded, were also heavily emphasized in our bid to avoid a conviction The Magistrate ultimately agreed that this was a case where a conviction would be a disproportionate outcome, and dismissed the matter pursuant to section 10 of the Crimes (Sentencing Procedure) Act, without conviction. At the time, this was the first case in New South Wales were an offence of possession of child pornography was dispensed with without a conviction being recorded.