A former NSW police officer avoided prison time despite using his position to access and download photos of an arrested woman’s genital area, before uploading the images to a closed Facebook group comprising four other serving police officers.

As previously reported, 29-year old former senior constable Steven Albee pleaded guilty in Downing Centre Local Court last month to using a carriage service to menace, harass or offend under section 474.17 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of three years’ imprisonment.

Despite the gravity of the offence, which is signified by a gross breach of trust and abuse of his position, Magistrate Jennifer Atkinson saw fit to allow Mr Albee to leave court on a two year good behaviour bond.

The story so far

Mr Albee was a senior constable working in western Sydney when he arrested the woman during a traffic stop for allegedly refusing a roadside drug test. He drove her to the police station, where her phone was seized during the custody process.

The officer then took it upon himself to use police software to access her phone and identify four intimate images, three of which depicted the woman’s vagina and another her boyfriend’s penis and torso.

The officer uploaded the photos depicting the woman’s vagina to the Facebook group and told his fellow officers they were of a woman he just arrested.

An internal police investigation followed, during which the woman and her partner confirmed the images were theirs and that they had not consented to the conduct.

Both expressed anger, disgust and embarrassment about the images being shared without their knowledge or consent.

Mr Albee was subsequently arrested, charged and suspended on full pay.

A police spokesperson advised the media last month that the officer’s employment “ceased” in “late 2018”.

Police have since confirmed the officer resigned from the Force.

Support from the NSW Police Force

In a move that has angered the public, members of the NSW Police Force supported Mr Albee during the sentencing hearing.

In addition, a letter was handed-up to the court by the police prosecutor “in relation to matters of assistance”, which presumably related to assistance the officer gave in other investigations.

In her judgment, the Magistrate made clear she would have sent Albee to prison if it was not for the letter of assistance.

“That is a very important document because, apart from that, I would have been looking at imposing a custodial sentence,” her Honour remarked.

‘Protecting their own’

Mr Albee’s lawyers downplayed the role played by the NSW Police Force in influencing the result, pointing out that her Honour also took into account that Mr Albee suffers from ‘serious medical problems’ that pre-date his offending conduct.

But many see the Force’s decision to suspended the officer on full pay, allow him to resign and support him in court as an example of police ‘protecting their own’.

If Mr Albee reoffends within the next two years, his bond will likely be revoked and he will face re-sentencing for the offence.

NSW offences regarding intimate images

After 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.

Definitions

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.

Statutory defences

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.

Rectification orders

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.