Usmanov v The Queen

[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

1. HIS 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.

1. The 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.

1. In 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.

1. In 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.

1. The 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.

1. Accordingly 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.

1. Mr Usmanov, do you enter into that bond to be of good behaviour?

1. APPELLANT: Yes.

1. HIS HONOUR: Could you tell me what your present address is?

1. APPELLANT: xx xxxxx Street, xxxxx 2007

1. HIS HONOUR: What was the postcode?

1. SPENCER: 2007, your Honour.

1. APPELLANT: 2007.

1. HIS HONOUR: A copy of the bond will be sent there, Mr Spencer.

1. ADJOURNED

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Decision last updated: 04 June 2013