Usmanov v R [2012] NSWDC 290

District Court New South Wales

Medium Neutral Citation: Usmanov v R [2012] NSWDC 290 Hearing dates: 15 February 2012 Decision date: 15 February 2012 Before: Blanch J CJDC Decision: Allow the appeal against the sentence. Set aside the order of the magistrate. Confirm the order of the magistrate for a sentence of six months but suspend that on the condition that he enters into a bond to be of good behaviour for a period of six months. Catchwords: CRIMINAL LAW - publishing an indecent article Category: Principal judgment Parties: Ravshan Usmanov Regina Representation: Ms Khan Mr Spencer File Number(s): 2011/329015 Publication restriction: Address of the appellant has been anonymised. Decision under appeal Jurisdiction: 9109 Citation: Police v Ravshan USMANOV [2011] NSWLC 40 Date of Decision: 2011-11-09 00:00:00 Before: Deputy Chief Magistrate Mottley File Number(s): 2011/329015

Judgment 1HIS HONOUR: This is an appeal from the Downing Centre Local Court when the appellant was convicted of an offence of publishing an indecent article. He had broken up with his girlfriend and he posted some indecent photographs of her on his Facebook page. She became aware of that. She asked him to take them off. He declined. She got in touch with the police and he then took the photographs off the Facebook page. They did reappear some time later. 2The magistrate dealt with it on the basis that he failed to take them off completely. The magistrate also dealt with it on the basis that it was not clear on the evidence how many people had access to the Facebook page and, therefore, how broad the distribution of the material was. The magistrate was also concerned about similar offences and what the pattern of sentencing was. In this case the case involved a twenty year old with no prior criminal history and an otherwise respectable and responsible background. 3In fact there have been other cases before the court and I know that I determined one case where the posting was more serious than this matter and in that matter I imposed a suspended sentence. 4In my view, bearing in mind his age and lack of prior criminal history and the history of this matter, the magistrate was correct in assessing that it was a matter that required the imposition of a gaol sentence, because there does have to be a general deterrence aspect to these sorts of offences because they are offences that are easy to commit and can have a significant impact so far as the victim is concerned. 5The magistrate, having correctly come to that conclusion, then decided that the matter should be dealt with by way of home detention. In my view the matter can equally be dealt with by way of a suspended sentence. 6Accordingly the order that I make is I allow the appeal against the sentence. I set aside the order of the magistrate. I confirm the order of the magistrate for a sentence of six months but I suspend that on the condition that he enters into a bond to be of good behaviour for a period of six months. 7Mr Usmanov, do you enter into that bond to be of good behaviour? 8APPELLANT: Yes. 9HIS HONOUR: Could you tell me what your present address is? 10APPELLANT: xx xxxxx Street, xxxxx 2007 11HIS HONOUR: What was the postcode? 12SPENCER: 2007, your Honour. 13APPELLANT: 2007. 14HIS HONOUR: A copy of the bond will be sent there, Mr Spencer. 15ADJOURNED