DISTRIBUTING PROHIBITED VISUAL RECORDINGS – SECTION 227B CRIMINAL CODE (QLD)

If you share a prohibited video of a person without their consent you will commit a criminal offence. Smart phones and other technology has enabled persons to share videos. Some people share what the law considers to be prohibited visual recordings. For example, if your girlfriend sends you a text message containing a video of herself naked to your mobile phone.  They often refer the sharing of prohibited visual recordings in the media as “revenge porn”. This is because the recordings have been shared for a sinister purpose in causing another person harm or shame. Prohibited visual recordings may also be shared to blackmail a person or to show friends how sexy a girlfriend or boyfriend is.

 

What does the prosecution need to prove for an offence of Distributing prohibited visual recordings?

 

1. You distributed a prohibited visual recording of another person.

 

2. You had reason to believe the visual recording was a prohibited visual recording.

 

3. The visual recording was distributed without the other person’s consent

 

What Is A Prohibited Visual Recording?

 

Section 207A of the Criminal Code defines prohibited visual recording of a person as:

 

(a) a visual recording of the person, in a private place or engaging in a private act, made in circumstances where a reasonable adult would expect to be afforded privacy; or

(b) a visual recording of the person’s genital or anal region, when it is bare or covered only by underwear, made in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region.

 

What Does “Distribute” Mean?

 

Section 207A of the Criminal Code defines “distribute” to include:

 

(a) communicate, exhibit, send, supply or transmit to someone, whether to a particular person or not; and

(b) make available for access by someone, whether by a particular person or not; and

(c) enter into an agreement or arrangement to do something in paragraph (a) or (b); and

(d) attempt to distribute.

 

 

Consent

 

The visual recording must have been distributed without the other person’s consent.

Section 227B(2) says consent means “consent freely and voluntarily given by a person with the cognitive capacity to give the consent”.

If the person does not give their consent freely and voluntarily, they will be deemed not to have given their consent. For example, if the person was under duress when they gave their consent, then this would not be consent for the purpose of the law. Furthermore, if the person did not have cognitive capacity (for example someone who had an impairment of the mind) to give consent, then the distribution will not be deemed to be with their consent.

 

Rectification Orders

 

If you are convicted of an distributing prohibited visual recordings the Court can make a rectification order. A Rectification Order requires you to take reasonable action to remove, retract, recover, delete or destroy an intimate image or prohibited visual recording within a stated period.

If a Rectification Order is made and you do not comply with it, then you can be charged with an offence of not complying with the order. The maximum penalty for such an offence is 2 years imprisonment.

 

What Is The Penalty For Distributing Prohibited Visual Recordings Under Section 227B Of The Criminal Code?

The maximum penalty is 3 years imprisonment.

To give you an idea of penalties the Courts has sentenced persons to, we have summarised some cases from the District Court. These cases are only examples. Even if your case is very similar to any below, this does not mean you will receive the same penalty. There are a wide variety of factors which go into the mix when a Court decides on the penalty they will sentence a person to.

 

B.S v QPS [2019] QDC 197

 

The appellant pleaded guilty and was sentenced in the Cairns Magistrates Court for 7 charges of distributing prohibited visual recordings contrary to section 227B of the Criminal Code.

 

The appellant was sentenced to 6 months imprisonment for each offence, and they were ordered to be served concurrently (at the same time). The sentence was wholly suspended for an operational period of 2 years. This means the appellant didn’t go to jail, but he had a suspended sentence hanging over his head for 2 years.

 

The appellant appealed his sentence to the District Court based on it being manifestly excessive.

 

The appellant was 43 years of age and had no criminal history. He cared for his 3 children and had received a carer’s pension to assist his 5 year old child who had cerebral palsy. The appellant had recently returned to some casual employment with a previous employer. The court received references which spoke about the appellant’s efforts as a single parent and his previous work history.

 

The complainant and the appellant had been in a relationship for 8 years and they had 3 children. The appellant and the complainant separated. The complainant then went to live with her sister in Darwin. After the separation, the complainant stayed 5 or 6 times with the appellant and their children. After the last time the complainant stayed with the appellant he found out she had a boyfriend.

The appellant used Facebook Messenger to contact the complainant’s boyfriend. He told the boyfriend he and the complainant were still in an intimate relationship. The appellant sent copies of messages between himself and the complainant to the boyfriend to support his claims.

 

The appellant sent the boyfriend 2 images and a 39 second video. One image was of the complainant naked. The second image showed the complainant’s vagina and anus in a spread open position with the hand of another person placed on her right buttock. The video showed the appellant and complainant having sex. The appellant sent the boyfriend another 4 pictures of the complainant who was naked and posing in sexually explicit poses.

 

At the appellant’s first court appearance he indicated he intended to plead guilty.

 

Both the prosecution and the appellant’s lawyer submitted to the Magistrate community service was appropriate.

 

Decision Of The District Court

 

The Judge ruled the sentence from the Magistrates Court was excessive. The Judge re-sentenced the appellant to 200 hours community service and ordered no conviction be recorded.

 

Dever v The Commissioner of Police [2017] QDC 65

 

The appellant Mr. Dever pleaded guilty in the Magistrates Court to 2 offences:

 

1. Using a telephone service in a menacing, harassing or offensive way contrary to s 474.17(1) of the Criminal Code Act 1995 of the Commonwealth; and

 

2. Distributing prohibited visual recordings contrary to s 227B(1) of the Queensland Criminal Code.”

 

For the Commonwealth offence Mr. Dever was sentenced to 12 months imprisonment, and he was released forthwith upon giving security by way of recognisance in the sum of $3,500 conditioned that he be of good behaviour for 3 years.

 

For the offence of Distributing prohibited visual recordings, he was sentenced to 6 months imprisonment.

The appellant had 15 days pre-sentence custody declared.

 

The appellant appealed his sentences to the District Court based on them being manifestly excessive.

 

His Honour Judge Robertson who heard the appeal determined the sentences imposed were not manifestly excessive.

 

The Facts of the Offences

 

The appellant Mr. Dever was staying at a house owned by Mr. EF. At the time, a Ms. BD was also living at the home. The 3 of them each had their own bedrooms. Ms. BD recorded onto a hard drive nude images of herself and sexual activities. The hard drive was kept in MS. BD’s bedroom.  Mr. Dever did not have permission to access, copy or publish any of the material on the hard drive.

Mr. EF evicted Mr. Dever from the home. 3 days later Mr. Dever uploaded nude images and at least 1 video of Ms. BD masturbating to YouTube. Mr. Dever sent messages to Mr. EF telling him he had images and videos of Ms. BD.

Mr. Dever sent a message to Mr EF, including a link to a YouTube video of Ms BD masturbating. The video could only be viewed by persons who Mr Dever had provided the link to and 5 persons had viewed it.

Ms. BD found out about what Mr. Dever had done and reported the matter to police.

Police interviewed Mr. Dever and he made admissions to committing the offence. Mr. Dever was charged with the offence of of distribution of prohibited visual recordings contrary to s 227B of the Queensland Criminal Code and released on bail.

While on bail Mr. Dever sent unsolicited text messages with sexual overtones to Ms XY. He also sent her a picture of his erect penis. Mr Dever was charged with an offence using a carriage service to menace, harass or offend contrary to s 474.17 of the Commonwealth Criminal Code 1995.

 

Mr. Dever’s Antecedents

Mr. Dever was 44 years of age.

He had a lengthy criminal history.

His criminal history had many convictions for breaching domestic violence protection orders. He had previously been sentenced to Probation and Community Service.  He had been convicted of an offence of threat to kill and an offence of using a carriage service to menace, harass or offend under section 474.17 of the Commonwealth Criminal Code 1995.

 

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