Police v Ravshan USMANOV [2011] NSWLC 40

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 1Mr 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. 2The 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 3A 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. 4The images posted show the complainant while she is nude in certain positions and clearly show her breasts and genitalia. 5At 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. 6It 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. 7Mr 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. 8Subsequently 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.