A former NSW police officer will be sentenced next month after admitting that he illegally shared the intimate images of a woman he arrested.
29-year old Steven Albee was a senior constable with the NSW Police Force stationed at Nepean Local Area command when, in April 2017, he performed a traffic stop on a female driver.
According to the officer, he arrested the woman after she refused to participate in a roadside drug test.
He then conveyed her to the police station, where her personal items were seized and she was detained in the cells.
Albee then used police investigative software to generate a report which contained information that the woman’s mobile telephone contained four private images. He then saw fit to access the photos, three of which depicted the woman’s genitals and, the other, her boyfriend’s torso and penis.
The officer downloaded two of the images that depicted the female’s vagina and uploaded them to a Facebook chat group comprising four other serving NSW police officers, informing them that the photos were of an arrested woman.
Officers from the Professional Standards Command (PSC) began investigating the incident several months later and ultimately contacted the woman and her boyfriend.
Each confirmed the images were theirs and that they did not consent to police accessing or uploading them.
They each expressed disgust, embarrassment and anger that the images had been shared with others without their knowledge or consent.
Officer Albee was arrested in May 2018 and charged with one count of using a carriage service to menace, harass or offend.
He was suspended on full pay.
A police spokesperson advised the media on Tuesday that Mr Albee’s employment “ceased” in “late 2018”.
Information has not been released regarding the way in which the PSC became aware of the conduct. But considering the nature of the medium used and the charge preferred, it could be speculated that one of the officers in the chat group took offence and reported the conduct.
The means by which the officer’s employment ended is also unclear.
The former officer appeared before Downing Centre Local Court earlier this week and entered a plea of guilty.
His case was adjourned until 12 February 2019 for sentencing.
Section 474.17 of the Criminal Code Act 1995 (Cth) prescribes a maximum penalty of three years’ imprisonment where a person uses a ‘carriage service’ in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
A ‘carriage service’ is broadly defined to include a telephone service including SMS transmissions and the internet including emails and social media.
New offences regarding intimate images
Following debate and consultation regarding the adequacy of laws which criminalise the unauthorised use of intimate images, the NSW government enacted the Crimes Amendment (Intimate Images) Act 2017 which added the following offences to the Crimes Act 1900 (NSW):
- Recording an intimate image without consent – section 91P,
- Distributing an intimate image without consent – section 91Q,
- Threatening to record or distribute an intimate image without consent – section 91R
The maximum penalties for each of these offences is 3 years in prison and/or an $11,000 fine.
The new laws are intended to send a clear message that recording and distributing intimate images amounts to a crime. The sections also seek to clarify the scope of the prohibited conduct.
An ‘intimate image’ is defined by section 91N of the Crimes Act as:
- an image of a person’s private parts, or of a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy, or
- an image that has been altered to appear to show a person’s private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy.
The same section defines ‘private parts’ as:
- a person’s genital area or anal area, whether bare or covered by underwear, or
- the breasts of a female person, or transgender or intersex person identifying as female, whether or not the breasts are sexually developed.
It defines a ‘engaged in a private act’ as:
- in a state of undress, or
- using the toilet, showering or bathing, or
- engaged in a sexual act of a kind not ordinarily done in public, or
- engaged in any other like activity.
Required mental state
The required mental state for offences under section 91P and 91Q is that the defendant intended to record or distribute the images, or was reckless in that regard.
The required state for section 91R is that the defendant intended to cause the other person to fear that the threat would be carried out, and it is irrelevant whether the image actually existed.
Section 91T provides that an offence under section 91P or 91Q does not occur where:
- the conduct was for a genuine medical or scientific purpose, or
- the conduct was by a law enforcement officer for a genuine law enforcement purpose, or
- the conduct was required by a court or otherwise reasonably necessary to be done for the purpose of legal proceedings, or
- a reasonable person would consider the conduct acceptable, having regard to each of the following (to the extent relevant) the nature and content of the image, the circumstances surrounding the act, the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted, the degree to which the actions affect the privacy of the person depicted, and the relationship between the complainant and defendant.
Section 91S of the Act empowers a court to order a person who is found guilty under section 91P or 91Q to take reasonable steps to remove, retract, recover, delete or destroy any intimate image recorded or distributed.
The maximum penalty for a failure to comply is 2 years in prison and/or a fine of $5,500.