Citation: Director of Public Prosecutions (NSW) v WT [2013] NSWLC 33
Court: Local Court of NSW
Date: 12 December 2013
Judge(s): Magistrate Antrum
Background
The defendant, a 21-year-old male, faced three charges arising from separate interactions with two teenage girls. The charges involved possession of child abuse material, travelling to meet a child groomed for sexual activity, and inciting a person under 16 to commit an act of indecency. A non-publication order conceals the identities of all parties.
The possession charge arose from a scam. A 15-year-old girl and a friend targeted the defendant, sending him pornographic images and a video that were represented as being of the 15-year-old herself. The material was in fact downloaded from the internet and most likely depicted an unknown adult. The defendant paid money for the material, which was later found on his mobile phone.
The grooming charge concerned a separate Facebook exchange between the defendant and a 14-year-old girl. The conversation took on a sexual tone before the defendant visited the girl at her home while her parents were absent.
Legal Issues
- Whether pornographic images of an unknown, likely adult person could constitute "child abuse material" under s 91FB of the Crimes Act 1900 (NSW) when they were sent and received on the basis that they depicted a 15-year-old
- Specifically, whether the images were "implied to be" of a child within the meaning of s 91FB, even though they were not actually of a child and did not appear to be of a child
- Whether the defendant possessed the requisite intent for the charge of travelling to meet a child groomed for sexual activity under s 66EB(2A) of the Crimes Act 1900 (NSW)
Decision
Issue 1: Grooming and travel charge (Sequence 2)
The magistrate dismissed this charge, finding reasonable doubt as to the defendant's mens rea (that is, his mental intent at the relevant time). Although the Facebook conversation had a sexual tone, the circumstances immediately before and during the meeting did not demonstrate a specific intent to engage in unlawful sexual activity. The meeting lasted around two hours and consisted largely of conversation. The defendant suggested he might help clean the house or simply talk. The magistrate accepted that the defendant may have harboured hopes about the relationship but could not be satisfied beyond reasonable doubt that a relevant unlawful intent existed at the time of travelling.
Issue 2: Possession of child abuse material (Sequence 1)
The central question was whether images that were not actually of a child, and likely depicted an adult, could nonetheless be "implied to be" of a child under s 91FB. The magistrate distinguished between the three statutory states: material that "is" of a child, material that "appears to be" of a child, and material that "is implied to be" of a child. The "appears to be" state focuses on the viewer's perception of the image itself. The "implied to be" state shifts the focus to the sender or creator, who constructs a set of circumstances that implies to another person that the subject is a child, provided the material retains the capacity to carry that implication.
Here, the 15-year-old explicitly represented to the defendant that the images were of her. The defendant believed this, paid money for the material, and took steps to verify its provenance and the identity of the person depicted. The magistrate found ample evidence of arrangements and conduct prior to receipt of the images establishing the implication. Referring to the NSW Parliament's intent in its 2010 amendments, the magistrate concluded that the legislation was designed to capture any conduct where a person seeks sexual gratification from a perception or assumption that material depicts a child, without permitting technical exceptions. The charge was proved.
Issue 3: Indecency charge (Sequence 3)
The defendant pleaded guilty to this charge. No contested determination was required.
Orders Made
- The defendant was found to have possessed child abuse material; the offence on Sequence 1 was proved
- The charge on Sequence 2 (travel to meet a groomed child) was dismissed
- The matter was adjourned for sentencing
Key Takeaways
- Under s 91FB of the Crimes Act 1900 (NSW), material can constitute "child abuse material" even where the images do not actually depict a child, if the surrounding circumstances imply to the recipient that the subject is a child.
- A meaningful distinction exists between "appears to be" a child (assessed from the viewer's perception of the image itself) and "implied to be" a child (assessed by reference to the conduct and representations of the sender or creator, provided the material can still carry that implication).
- Parliament's 2010 amendments to the child abuse material provisions were construed as deliberately broad, intended to foreclose technical or contrived exceptions where a person seeks sexual gratification from a belief that material depicts a child.
- The mens rea requirement for the grooming and travel offence under s 66EB(2A) requires proof beyond reasonable doubt of a specific intention to engage in unlawful sexual activity, formed prior to or at the time of travelling; a general hope or desire is insufficient to establish that intent.
- The Court of Criminal Appeal's decision in DPP (NSW) v Annetts [2009] NSWCCA 86 was applied for the proposition that objective assessment of child abuse material can be informed, to a degree, by the circumstances surrounding the creation, viewing or use of the images.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- United States Code (US)
- Criminal Code Act 1995 (Cth)
Cases
- DPP v Annetts [2009] NSWCCA 86