A person who is in possession of child exploitation material knowing of its pornographic nature or intending to obtain access to a child pornography, obtains access to child pornography or takes a step towards obtaining access to child pornography will be guilty of an offence. A child is defined as a child under, or apparently under, the age of 17 years.
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Major indictable offence
District Court of South Australia
Maximum penalty of 12 years imprisonment
Possessing Child Pornography (Child Exploitation Material) Key Facts
| Offence | Knowingly possessing, controlling, or accessing child exploitation material (child pornography), under Section 63A of the Criminal Law Consolidation Act 1935 (SA). |
| Maximum Penalty | The maximum penalty is imprisonment for 12 years. |
| Typical Sentence | Sentences vary but usually include imprisonment or a suspended sentence; penalties depend on the volume and nature of the material and any previous offending. |
| Which Court? | Usually heard in the District Court; less serious matters may be dealt with summarily in the Magistrates Court. |
| Process Timeline | Police Investigation → Search and Seizure (e.g. devices) → Arrest → Police Interview → Bail Consideration → Committal Proceedings → Trial in District Court → Sentencing if guilty. (Average: 9-12 months) |
| Possible Defences | It may be a defence to the charge if: - The material was unsolicited and as soon as you became aware of the pornographic nature reasonable steps were taken to get rid of it. - There was a lack of intent - You did not have possession - You had an honest and reasonable mistake of fact, e.g. Believing that person depicted in the images are over the age of 17 years. |
| What The Prosecution Must Prove | The prosecution must prove you had: - Possession - Intention - Knowledge |
Possessing Child Exploitation Material Case Scenarios
Below are examples of how possessing child pornography may be charged and sentenced in South Australia. These examples are not indicative of a specific outcome and are for informational purposes only.
Low-Level Offence
Mid-Level Offence
Aggravated Offence
Low-Level Offence
Scenario:
An individual is found in possession of one or two images, not depicting ‘real’ children but cartoons of child exploitation images, obtained without intent, and promptly deleted upon realisation.
What to expect:
May result in a fine or a suspended sentence, especially for first-time offenders. It also depends on the nature of the material. Terms of imprisonment are not uncommon for this offence.
Mid-Level Offence
Scenario:
A person is caught possessing a moderate quantity of child exploitation material, including videos, depicting real children.
What to expect:
Could lead to imprisonment for up to 5 years. Sentencing depends on factors such as the volume of material and the nature of the content. Courts may also consider whether the material was organised or repeatedly accessed.
Aggravated Offence
Scenario:
An individual is alleged to possess a large, organised collection of child exploitation material, including extreme and graphic content. Investigations reveal they were on bail at the time.
What to expect:
If convicted, imprisonment is inevitable and will extend beyond 5 years, with sentences commonly ranging from 8 to 12 years depending on the scale and severity. In this case, the combination of aggravating factors of distribution, extreme content, and breach of court orders, places the matter towards the most serious end of penalties.
Disclaimer: The examples above are provided for informational purposes only and do not guarantee a specific result in your matter. Sentencing decisions can vary significantly depending on individual circumstances, including the severity of the offence, intent, prior criminal history and other legal factors. For case-specific advice, get in touch with one of our expert criminal lawyers.
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Possessing Child Exploitation Material FAQ’s
If you need more information about possessing child pornography in South Australia, these FAQs answer the most common questions.
What is considered child exploitation material under South Australian law?
Child exploitation material includes:
- Pornographic images or depictions of a child under 17
- Descriptions of sexual activity involving children
- Child-like sex dolls or digital representations
- Material where a child has been involved in its production
This broad definition is set out in section 62 of the Act.
Is there a difference between child exploitation material and child pornography?
Not really. They are the same but ‘child exploitation material’ is more expansive and can include all manner of images and content.
Can I be charged for accidentally receiving child exploitation material?
Yes, but there is a legal defence available. If the material was unsolicited, and you took reasonable steps to delete, destroy, or report it as soon as you became aware, you may avoid liability under s 63A(2).
What is a ‘step toward obtaining’ child exploitation material?
Examples include:
- Searching specific terms online,
- Clicking download links for such content,
- Attempting to join forums or websites known for illegal material.
Intent and digital trail evidence are often used by police and prosecutors.
Can I be charged with possessing child exploitation material if I’m under 18?
Yes. The law in South Australia does not exempt underage people from being charged with possession of child exploitation material. Even if you are under 18, you can still face charges if you possess, access, or share material involving children.
If you are underage, your case will usually be dealt with in the Youth Court of South Australia,
Possible outcomes include:
- Good behaviour bonds or supervision orders
- Community service
- Counselling or treatment programs
Detention can still be ordered in serious cases, such as repeat offending or distribution. Courts also take into account that young people may not fully understand the consequences of their actions, which can influence the way the matter is handled.
Can I be charged for accessing child pornography on the internet, even if I don’t download it?
Yes. Even viewing or streaming child exploitation material without saving it can constitute an offence, as this is still considered access under the law.
What is an ‘aggravated’ offence of child pornography possession?
Aggravating circumstances may include:
- Previous similar offences
- Large volumes of material
- Material involving infants or violence
- Involvement of children under your care or supervision
Can I be charged for possessing drawn, animated, or AI-generated child pornography?
Yes. South Australian law criminalises ‘representations’, not just photographs of real children. Animated, cartoon, AI, or CGI depictions can still qualify as child exploitation material if they involve children or appear to.
What is the legal age threshold for child pornography offences in SA?
A child is defined as a person under or apparently under 17 years of age.
What if the images or videos were sent to me without asking?
If material was sent to you without your consent and you did not seek it out, that may be relevant to your defence. However, you must not retain or share the material. Deleting it immediately and seeking legal advice is critical.
Can police search my phone or computer for this offence?
Yes. Police have broad powers to seize and search electronic devices where they suspect child exploitation material offences. Anything found can be used as evidence. Deleting or tampering with evidence once an investigation has begun can lead to further charges.
Can I be charged under Commonwealth law for child pornography offences?
Yes. If offences involve online access, transmission, or importation/exportation, Commonwealth offences under the Criminal Code (Cth) Division 474 may apply. These typically carry longer maximum sentences, up to 25 years in some cases.
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