New South Wales Consolidated Acts

CRIMES ACT 1900 - SECT 91G

91G Children not to be used for production of child abuse material

(1) Any person who--

(a) uses a child who is under the age of 14 years for the production of child abuse material, or

(b) causes or procures a child of that age to be so used, or

(c) having the care of a child of that age, consents to the child being so used or allows the child to be so used,

is guilty of an offence.

: Maximum penalty--imprisonment for 14 years.

(2) Any person who--

(a) uses a child who is of or above the age of 14 years for the production of child abuse material, or

(b) causes or procures a child of that age to be so used, or

(c) having the care of a child of that age, consents to the child being so used or allows the child to be so used,

is guilty of an offence.

: Maximum penalty--imprisonment for 10 years.

(3) A person is guilty of an offence against this subsection if the person commits an offence against subsection (1) or (2) in circumstances of aggravation.

: Maximum penalty--imprisonment for 20 years.

(3A) In this section,
"circumstances of aggravation" means circumstances in which--

(a) the alleged victim is under 10 years of age, or

(b) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or

(c) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or

(d) the alleged offender is in the company of another person or persons, or

(e) the alleged victim is, whether generally or at the time of the commission of the offence, under the authority of the alleged offender, or

(f) the alleged victim has a serious physical disability, or

(g) the alleged victim has a cognitive impairment, or

(h) the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or

(i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or

(j) the alleged offender breaks and enters into a dwelling-house or other building with the intention of committing the offence or another serious indictable offence.

(3B) In proceedings for an offence against this section, it is not necessary to prove that the accused knew the age of the child concerned.

(3C) If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1) or (2), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1) or (2). The person is liable to punishment accordingly.

(4) For the purposes of this section, a person may have the care of a child without necessarily being entitled by law to have the custody of the child.

(5) Where on the trial of a person for an offence under subsection (1) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (2), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.

(6) Proceedings for an offence under this section against a child or young person may only be instituted by or with the approval of the Director of Public Prosecutions.