Local Court New South Wales

• Medium Neutral Citation: Police v Ravshan USMANOV [2011] NSWLC 40
• Hearing dates: 09/11/2011
• Decision date: 09 November 2011
• Jurisdiction: Criminal
• Before: Deputy Chief Magistrate Mottley

Decision

The Defendant is convicted and sentenced to imprisonment for a period of six months, to be served by way of Home Detention, subject to a suitability assessment.

• Catchwords: CRIMINAL LAW - publish indecent article - uploading of nude photographs of complainant on Facebook website - application of s 10, Crimes (Sentencing Procedure) Act not appropriate - harm to complainant - need for general deterrence - sentence of imprisonment the only appropriate penalty
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: Police v Ashby (Becroft J, Wellington District Court, 12/11/2010)
• Category: Sentence
• Parties: Police; Rashan Usmanov (the defendant)
• Representation: Sgt Watson (for the Police); Ms Sten (for the defendant)
• File Number(s): 2011/329015

Judgment

Remarks on Sentence

1 Mr Usmanov has entered a plea of guilty to an offence of publishing an indecent article, an offence prosecuted under section 578C of the Crimes Act 1900, which carries a maximum penalty of imprisonment for a period of 12 months together with a fine of up to $11,000.

2 The proceedings were first listed before the Court on 19 October 2011 and on that day Mr Usmanov entered a plea of guilty. Accordingly, he will receive a 25% discount on the otherwise appropriate penalty for the utilitarian value of that plea.

Facts

3 A short Statement of Facts has been tendered in these sentencing proceedings. Mr Usmanov and the complainant, Ms Bayanmunkh, have known each other since 2008. During that time they have been in a relationship, which has on occasions been intimate. They have also lived together, but in July 2011 the complainant moved from the premises she shared with Mr Usmanov. On 15 October 2011, according to a statement made to police by Mr Usmanov, to get back at the complainant he decided to post six images of her on his Facebook page.

4 The images posted show the complainant while she is nude in certain positions and clearly show her breasts and genitalia.

5 At 8.01am, 8.11am and 9.39am, Mr Usmanov sent an email to the complainant saying, "Some of your photos are now on Facebook". At 9.45am the complainant's housemate told her that there were some of her photos on Facebook. The complainant immediately went to Mr Usmanov's home where she confronted him and asked him to remove the photos, which he refused to do. She then went to the police.

6 It is not clear when, but the police spoke with Mr Usmanov and he agreed to take the photos down. Later that day at approximately 2.15pm, Mr Usmanov attended Town Hall police station, where he told police he posted the photos because he had been hurt by the complainant and it was the only thing to hurt her. While at the police station Mr Usmanov showed the police his Facebook account, which revealed the photos had been removed.

7 Mr Usmanov then left the police station. At approximately 2.50pm that day, Const Smith received an email from the complainant complaining that the photos had been reposted. She had become aware of that because Ms Usmanov had sent a friend request to Tsatsral Gansunkh, a person known to the complainant. At 4.45pm the complainant, Mr Gansunkh and another person went to the police station where under police supervision the photographs were provided to the police.

8 Subsequently Mr Usmanov was arrested. He made full admission, saying he posted the photos to get back at the complainant and had thought he had removed them from the site after he had spoken to the police earlier in the day.

Consideration of penalty and assessment of criminality

9 The maximum penalty for this offence is a sentence of imprisonment for a period of 12 months together with a fine of up to $11,000. The penalty is indicative of the seriousness the community views this type of offence.

10 Despite an extensive search, no NSW reported decisions could be located that assist with the approach to be taken in a matter such as this where the material has been published on Facebook or the Internet. Nor are there any NSW reported decisions where the material published is indecent but does not constitute child pornography.

11 The only decision found which touches upon these issues is from Judge Becroft of the Wellington District Court in New Zealand on 12 November 2010. In the matter of Police v Joshua Ashby, Mr Ashby had posted a nude photograph of his ex girlfriend on Facebook. Not only did he log into her account and upload the image, which showed her to be naked in front of a mirror, he then unblocked her privacy settings and changed her password. The image remained online for a period of 12 hours before the police and Facebook authorities shut down the account. Mr Ashby received a full time sentence of imprisonment for a period of 4 months.

12 In his reasons, Judge Becroft was concerned that technology not be used in this way and as such the appropriate starting point should be prison.

13 For Mr Usmanov's part, there was clearly some premeditation given the attempts he made to contact the complainant to invite her to look at the Facebook page. The number of images posted, their removal, reposting and the invitation to Mr Gansunkh to join as a friend clearly with the intention to expose the photos posted elevate the seriousness of the offence. It is not known what privacy settings, if any, existed for the Facebook page and how many people, if any, may have been able to access that page while the image was posted. What is clear from the Statement of Facts is that the complainant's housemate saw the images at 9.45am and Mr Gansunkh at 5pm on the same day.

14 For the purpose of sentencing I am of the opinion that this matter falls above the half way mark.

15 Mr Usmanov appears for sentencing without any prior criminal antecedents. He is 20 years of age. He arrived in Australia from Uzbekistan in 2007. He has completed an accountancy degree and is currently employed at Maersk Line Australia as a credit controller. Character references tended on his behalf indicate he has expressed his remorse of the offence, appreciating the damage his actions have done to the complainant's reputation.

16 It has been submitted on Mr Usmanov's behalf that this matter should be dealt with under the provisions of section 10 of the Crimes (Sentencing Procedure) Act 1999. Those submissions being based on his age, lack of antecedents, his contrition and the impact a conviction would have on his future.

17 In my view this is not a matter for the application of the provisions of s 10, notwithstanding Mr Usmanov's age and good character. The nature of this offence could not be regarded as trivial. This offence was executed with planning and characterised by a clear intent. From the submissions made, nor could it be said there is any extenuating circumstance which the court should have regard to which would lead to the application of the provisions of s10.

18 I am of the view a conviction should be recorded.

19 In relation to this matter I have regard to the purposes of sentencing, and in particular the need to prevent crime by deterring both the offender and the community generally from committing similar crimes. This is a particularly relevant consideration in a matter such as this where new age technology through Facebook gives instant access to the world. Facebook as a social networking site has limited boundaries. Incalculable damage can be done to a person's reputation by the irresponsible posting of information through that medium. With its popularity and potential for real harm, there is a genuine need to ensure the use of this medium to commit offences of this type is deterred.

20 While there has not been a victim impact statement given in these proceedings, the harm to the victim is not difficult to contemplate: embarrassment, humiliation and anxiety at not only the viewing of the images by persons who are known to her but also the prospect of viewing by those who are not. It can only be a matter for speculation as to who else may have seen the images, and whether those images have been stored in such a manner which, at a time the complainant least expects, they will again be available for viewing, circulation or distribution.

21 Accordingly I am of the view that the only appropriate penalty in relation to this matter is a sentence of imprisonment. Having reached that conclusion, I have to consider how that sentence should be served.

22 Given the importance of general deterrence for this type of offending, a suspended sentence is not an appropriate penalty.

23 From all the material provided to the court, there are no issues that an ICO could address by way of programs to assist with the rehabilitation of Mr Usmanov, so that is not an appropriate penalty.

24 Taking into account Mr Usmanov's age and his lack of antecedents, I am of the view the appropriate penalty is a sentence of imprisonment to be served by Home Detention, subject to the assessment as to suitability.

Decision

25 Mr Usmanov, you are convicted. Taking into account the plea of guilty with a discount of 25%, you are sentenced to a term of imprisonment for a period of 6 months.

26 The proceedings are adjourned until 19 December 2011 for the purpose of the Home Detention assessment.

Deputy Chief Magistrate J Mottley

Downing Centre Local Court

**********

NOTES:

On 9 November 2011, the defendant lodged an appeal against sentence in the District Court.

On 6 February 2012, the Local Court ordered that the defendant serve the sentence of imprisonment by way of Home Detention following an assessment of suitability.

On 15 February 2012, the District Court (per Blanch CJDC) confirmed the defendant's sentence of imprisonment, but quashed the Home Detention Order and ordered that the sentence be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999.

Decision last updated: 13 April 2012