Installing a Device to Facilitate Observation or Filming

In NSW, installing a device to facilitate observation or filming, is a serious offence that carries a maximum penalty of a fine of 100 penalty units and/or imprisonment for two years.

In NSW, a court can impose any of the following penalties for this charge:-

• Prison Sentence
• Home Detention
• Intensive Corrections Order (ICO)
• Suspended Sentence
• Community Service Order (CSO)
• Community Corrections Orders (CCO)
• Good Behaviour Bond
• Fine
• Section 10A
• Conditional Release Order (CRO)
• Section 10

The Offence of Installing Device to Facilitate Observation or Filming

The offence of ‘installing device to facilitate observation or filming’ is set out in section 91M of the Crimes Act 1900 and states:

A person who, with the intention of enabling that person or another person to commit an offence against 91J, 91K or 91L, installs any device, or constructs or adapts the fabric of any building, for the purpose of facilitating the observation of filming of another person, is guilty of an offence.

What Actions Might Constitute Installing Device to Facilitate Observation or Filming?

• This section refers to offences under section 91J, 91K and 91L of the Crimes Act 1900. These are:-
  • 91J: Voyerism;
  • 91K: Filming a person engaged in a private act;
  • 91L: Filming a person’s private parts.
• Any reference to a ‘building’ in this provision includes: vehicles, vessels, tents and temporary structures.
• Where the section refers to “constructing or adapting the fabric of any building” for the purpose of facilitating the offence, the most common example of this is where someone creates a peephole in a door or wall to watch the person on the other side.

What the Police Must Prove?

To find you guilty of an offence of installing device to facilitate observation or filming, the Police must prove, beyond reasonable doubt, that you:-

• For the purpose of enabling yourself or another person to commit an offence under section 91J, 91K or 91L of the Crimes Act 1900;
  • Installed a device; or
  • Constructed or adapted the fabric of a building;
• For the purpose of facilitating the observation or filming of another person.

What Court Will Deal with My Matter?

An offence under section 91M is a summary offence. That means that your matter must be dealt with to finality in the Local Court.

Possible Defences to Installing Device to Facilitate Observation or Filming

Common ways that you can defend the charge of installing device to facilitate observation or filming are if you can show:-

• Your purpose was not to enable yourself or another person to commit a specified offence;
• You did not install the device for facilitate the observation or filming of another person; or
• You did not install a device, contrast or adapt the fabric of a building.

Types of penalties:

Jail: This is the most serious penalty and involves full time detention in a correctional facility. Read more.

Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive Corrections Order (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community Service Order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good Behaviour Bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.

Fines: When deciding the amount of a fine the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10A: A section 10A is a conviction, with no other penalty attached to it. Read more.

Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.

Section 10 avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.