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Local Court 9 November 2011

Police v Ravshan USMANOV

[2011] NSWLC 40

Sexual offences
CRIMINAL LAW PUBLISH INDECENT ARTICLE HARM TO COMPLAINANT NEED FOR GENERAL DETERRENCE

Citation: Police v Ravshan Usmanov [2011] NSWLC 40
Court: NSW Local Court (Downing Centre)
Date: 9 November 2011
Judge: Deputy Chief Magistrate J Mottley

Background

The defendant and the complainant had been in an intimate relationship since 2008 and had lived together until the complainant moved out in July 2011. On 15 October 2011, the defendant uploaded six nude photographs of the complainant to his Facebook page, with the stated purpose of hurting her. He sent her emails inviting her to view them and later sent a friend request to one of her acquaintances, apparently to ensure wider exposure of the images.

After being confronted by the complainant and then attending a police station, the defendant appeared to have removed the photographs. However, later that afternoon the images were reposted. The defendant was subsequently arrested and made full admissions to police, acknowledging he had posted the photos to get back at the complainant.

The defendant pleaded guilty at the first court date to publishing an indecent article under section 578C of the Crimes Act 1900, attracting a 25% discount on sentence for the utilitarian value of the early plea.

  • Whether the offence warranted a conviction, or whether the matter was appropriate for a non-conviction order under section 10 of the Crimes (Sentencing Procedure) Act 1999
  • What the appropriate form and severity of sentence was, having regard to the nature of the offending, the defendant's personal circumstances, and the purposes of sentencing including general deterrence

Decision

The Magistrate declined to apply section 10 (which allows a court to dismiss a charge or discharge a person without conviction). Despite the defendant's youth (aged 20), absence of prior criminal history, and expressed remorse, the Magistrate found the offence could not be characterised as trivial. It was executed with planning and a clear intent, and no extenuating circumstances justified a non-conviction order.

The Magistrate assessed the offending above the midpoint of the sentencing range. Relevant aggravating features included the premeditated nature of the conduct, the number of images, the reposting of images after they had been taken down, and the deliberate step of sending a friend request to the complainant's acquaintance to increase exposure.

On the question of form of sentence, the Magistrate held that imprisonment was the only appropriate penalty. General deterrence was identified as a particularly significant consideration, given the capacity of social media platforms such as Facebook to cause immediate and potentially irreversible reputational harm to victims. A suspended sentence was rejected as insufficient to serve that deterrent purpose. An intensive correction order (ICO) was also rejected on the basis that there were no rehabilitation programs it could address.

Taking into account the defendant's age and lack of prior offending, the Magistrate concluded that imprisonment by way of home detention was appropriate, subject to an assessment of suitability. A six-month sentence was imposed after applying the 25% guilty plea discount.

Orders Made

  • The defendant was convicted of publishing an indecent article contrary to section 578C of the Crimes Act 1900
  • The defendant was sentenced to six months' imprisonment (reflecting a 25% discount for the early guilty plea)
  • Proceedings were adjourned to 19 December 2011 for a home detention suitability assessment
  • On 6 February 2012, the Local Court ordered the sentence be served by home detention following a favourable assessment
  • On appeal, the District Court (Blanch CJDC) confirmed the six-month sentence but quashed the home detention order and instead suspended the sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • A guilty plea and a clean record will not automatically attract a non-conviction order under section 10 of the Crimes (Sentencing Procedure) Act 1999 where the offending involves deliberate planning and a clear intention to cause harm.
  • Publishing intimate images online without consent was treated as serious criminal conduct warranting full imprisonment, even for a first offender, because of the significant and potentially lasting harm to the victim's reputation and wellbeing.
  • General deterrence was given particular weight in the sentencing analysis, reflecting the court's concern about the capacity of social media to cause rapid, wide-scale, and difficult-to-reverse harm to victims.
  • No NSW reported decisions were located at the time dealing with the publication of indecent (non-child pornography) material on Facebook or the internet, making this an early judicial treatment of such conduct in this jurisdiction.
  • On appeal, the District Court confirmed the sentence length but substituted a suspended sentence for the home detention order, indicating that the appropriate form of custodial penalty remained a live question at that level.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), section 578C (publishing an indecent article; maximum penalty 12 months' imprisonment and/or $11,000 fine)
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 10 (non-conviction orders), section 12 (suspended sentences)

Cases:
- Police v Joshua Ashby (Becroft J, Wellington District Court, New Zealand, 12 November 2010): New Zealand case involving the posting of a nude photograph of an ex-partner on Facebook; the offender received four months' full-time imprisonment; cited for the proposition that imprisonment is the appropriate starting point for this type of technology-facilitated offending