Charged with a child abuse material offence in NSW.

The legislative source.

Section 91H was substituted by the Crimes Amendment (Sexual Offences) Act 2010 (NSW), in force from 17 September 2010, replacing the earlier child pornography provisions. The current offence treats production, dissemination and possession as a single offence with three modes of commission. Each mode carries the same 10-year maximum.

The definition of child abuse material in s 91FB is broad. It captures material that depicts or describes (in a way that reasonable persons would regard as offensive) a person under the age of 16 in a sexual context, as a victim of cruelty or torture, or in the company of a person engaged in sexual activity. The definition is not limited to photographic material; it extends to drawings, written material and digital data.

The mental element is knowledge: the accused must know that he or she is producing, disseminating or possessing the material (subject to the s 91HA(1) lack-of-knowledge defence). Section 91HA(1) places the evidentiary burden on the accused to raise the defence; once raised, the Crown must negative it beyond reasonable doubt.

Where the proceedings are against a child (defined in s 91FA as a person under 16), s 91H(3) requires the approval of the Director of Public Prosecutions before the matter can be brought. This is a procedural protection for children who may have produced, possessed or disseminated material to other children in a sexting context.

Penalties and likely outcomes.

The realistic range.

For a first-offence possession matter at the lower end (small holding, no dissemination, no contact offences), an ICO of 12 to 24 months is achievable on plea with a strong subjective case. CCOs are uncommon but reached where the conduct is at the lowest end (a single inadvertent download, prompt reporting, no other offending) and the subjective case is unusually strong. Section 10 outcomes are vanishingly rare.

Aggravating circumstances.

Larger holdings, more serious categories of material under the Oliver / COPINE scales, evidence of dissemination, networking with other offenders, and any contact offences (whether charged or uncharged conduct) all move the sentence upward. Full-time custody is the realistic outcome for any matter involving dissemination, production, or networked sharing.

Subjective material.

Psychiatric or psychological evidence is almost always engaged. The court will want to understand the offending in its psychological context, to assess prospects of rehabilitation, and to evaluate risk of further offending. Engagement with treatment (and demonstrated change) before sentencing carries substantial weight.

Defences and arguments worth running.

Lack of knowledge (s 91HA(1)).

The most common defence raised. The accused must produce evidence that he or she did not know, and could not reasonably be expected to have known, that the material was child abuse material. Common factual circumstances include shared devices, sideloading without inspection, and embedded material in larger downloads. Once the defence is raised on the evidence, the Crown must negative it beyond reasonable doubt.

Unsolicited material (s 91HA(2)).

For possession matters not involving production or dissemination, the defence is engaged where the material came into the accused's possession unsolicited and the accused, on becoming aware of its nature, took reasonable steps to get rid of it. The defence is fact-sensitive. The conduct after discovery is critical.

Public benefit (s 91HA(3) to (5)).

Conduct that was necessary for, or of assistance in, the enforcement of the law, monitoring compliance with the law, or the administration of justice. The defence is limited and operates in a defined statutory band.

Law enforcement (s 91HA(6)).

For law enforcement officers acting in the course of their duties and conducting themselves reasonably for the purpose of performing that duty. The defence applies to operational policing, classification work, and investigation.

Search-warrant and admission challenges.

The validity of any search warrant is examined closely. The s 138 Evidence Act discretionary exclusion is frequently engaged where the search exceeded the warrant or where the questioning departed from LEPRA Part 9 (custody manager duties, caution, opportunity for legal advice). Admissions made without recording in indictable matters are inadmissible under s 281 of the Criminal Procedure Act 1986 (NSW) absent a reasonable excuse.

What we do for clients facing this charge.

The first step is preservation and discretion. Devices are managed through the proper forensic channels; nothing is touched outside that framework. Communication with the firm is limited to the channels you choose. Family members are kept informed only with your express instructions.

The second step is the brief. The forensic device extraction, the file metadata, the user-attribution evidence and the investigative officer's notes are all sought as a priority. Where the user-attribution is contested (shared devices, household members with access, malware-installed material) the brief is read against that factual frame from the outset.

The third step is subjective material. A psychological or psychiatric assessment is typically engaged early. The clinical context, any treatment that is appropriate, and any rehabilitation engagement is built into the matter long before the plea date.

For matters that proceed to trial, the brief is run on the elements (production, dissemination, possession), on the knowledge element (s 91HA(1)), on the search-warrant and s 138 framework, and on any other defence that is engaged on the facts.

What we tell clients on the first call.

The practical detail below is not legal advice for your matter. It is the version of the conversation the firm typically has with a client charged with child abuse material in the first hour.

What evidence police usually rely on.

The forensic image of the device, the categorisation evidence by the AFP or NSW Police HiTech Crime Unit, and the search warrant material. The hash-match material against the existing classified database is the centrepiece of most briefs.

What to bring to the first consultation.

• The Court Attendance Notice (or charge sheet) and any bail papers.
• Anything police gave you in writing — fact sheet, certificate of analysis, search warrant copy, property seizure record.
• A short written timeline of the day, in your own words.
• Bring nothing; phone us first. The device and any material on it should not be discussed by email or text. We will conference you in chambers.

Common mistakes in the first twenty-four hours.

• Talking to anyone other than your lawyer about the matter. Friends, family, co-accused and social media are not privileged.
• Deleting messages, photographs, posts or browser history. The trail left by deletion is often more damaging than what was there.
• Contacting the complainant or any prosecution witness, even through a third party.
• Touching the device. Anything done to the device after seizure (or on a connected account) is captured.

What not to say to police without advice.

You must give your name and address. You do not have to answer anything else, and in most cases you should not. The standard answer is: “I do not wish to answer questions. I want to speak to my lawyer.” Section 89 of the Evidence Act 1995 (NSW) protects silence; the narrow section 89A exception applies only on indictable matters and only where a special caution has been given in the presence of an Australian lawyer.

The timeline you can expect.

From charge to first court appearance is typically two to six weeks in the Local Court and longer where the matter is indictable. The brief of evidence is served by the prosecutor on a date set at the first mention. From service of the brief to first reply is typically twenty-eight days. Defended hearings and committals are then listed weeks or months out depending on the court list.

When an early plea may or may not be appropriate.

An early plea attracts a sentencing discount of up to twenty-five per cent if entered at the first available opportunity, but it locks in a conviction. The firm does not advise an early plea before the brief is served and read. An early plea is rarely the right call before the categorisation evidence is reviewed. Where the charge is properly made out, the realistic best outcome on the facts is a sentence on the lower end with treatment and supervision.

Court-specific notes.

If the matter is listed at the Downing Centre, Parramatta, Penrith, Burwood, Manly, Newtown, Waverley, Hornsby or Sutherland Local Court, the firm appears in person. Wollongong Local Court matters are run from the firm's Wollongong office. ACT Magistrates Court and ACT Supreme Court matters are run from chambers; the firm appears in person at all ACT mentions.

Recent outcomes · child abuse material matters.

Anonymised outcomes from the firm's matter set. Names, dates beyond the year, and identifying details have been altered or omitted to preserve client confidentiality. Each result was determined on the particular facts and is not a guarantee of any future outcome.

Frequently asked.