A young man who asked a 13-year-old girl to send a nude photo of herself after she asked him to buy her vodka Cruisers had his court appeal upheld in Orange on Tuesday.
Jonah Anthony Ruzgas, 21, of Parkes, spent two months and 28 days in jail after police found messages between the then 19-year-old man and the girl on her phone.
According to information presented in Orange District Court, the girl reached out to Ruzgas on Snapchat in the first half of 2020 asking him to buy her 10 vodka Cruisers and in response he asked for a nude. She sent him a photo of her in a bikini and used the phone app to scribble over the breast and genital area.
The pair did not meet face-to-face and Ruzgas did not purchase the requested alcohol. The girl subsequently blocked him but the offence was discovered by police after the girl's mother saw other content on her phone and took it to the police.
Ruzgas was arrested on May 14, 2020, and charged with indecently inciting a child aged between 10 and 16 to carry out a sexual act.
He was later granted supreme court bail before being convicted and sentenced to a 12-month Community Correction Order in Bathurst Local Court on March 30, 2022.
However, on Tuesday, Judge Graham Turnbull upheld the appeal in Orange District Court and instead gave Ruzgas a Conditional Release Order requiring him to be of good behaviour for 12 months without a conviction being recorded.
"This is now an experience that you can now put behind you bearing in mind that clearly from first blush it looks terrible," Judge Turnbull said.
"I have absolutely no doubt that he's got a bright future.
"I have no doubt he's not going to reoffend. When he says he will never do it again there's no [concern] that he will ever do it again.
"From first blush people will think the worst."
The time Ruzgas spent in jail, strict bail conditions and Ruzgas blaming himself for his father's early death from COVID were raised during the defence argument for the conviction to be quashed.
Judge Turnbull was also presented with a psychological report and character references that detailed Ruzgas' involvement in sports including rugby union and cricket as well as his employment.
He also read a letter from Ruzgas in which he said he would have to "live with the fact that the death of my father was due to a lapse in judgement of a 19-year-old who had not grown up".
"Never did I comprehend the seriousness of this action and the follow on effect this would have on those close to me."
Judge Turnbull said Ruzgas' act was at a low level of seriousness for a charge that carries a maximum of two years' jail for the most serious offenders, whereas other child sex offences can carry sentences of life in jail.
He also took into account Ruzgas' young age, that he is undergoing counselling, has no history of prior offending, is employed and considering further studies, and that he had been highly regarded in the community, although "his reputation has taken a significant hit".
Barrister Wali Shukoor represented Ruzgas and said other charges that were before the court when Ruzgas was initially refused bail and held in custody have since been withdrawn and dismissed.
"It is generally serious conduct but in my submission it falls in the very bottom of seriousness for an offence of this kind of spur-of-the-moment kind of offence," Mr Shukoor said.
"The nature of the offending is immature, silly.
"The bail conditions were effectively house arrest."
Those bail conditions included a $50,000 surety to be paid and he had to leave his home and live with his grandfather, not have access to the internet and not go out unless in the company of his grandfather or parents.
The court heard that during a visit to Ruzgas' bail address in Penrith last year, Ruzgas' father contracted COVID and died following a three-month stay in hospital. As a result, Ruzgas blamed himself for his father's premature death.
Crown prosecutor Daniel Rainey argued for the conviction to be upheld, citing the need for general deterrence.
"Offences relating to child sex offences demand conviction," Mr Rainey said
However, Judge Turnbull said general deterrence could be applied taking into account circumstances following Ruzgas' arrest.
"If people knew what has happened in this case they might think that three months in jail for a person of good character ... they might think that is a deterrent even before you come anywhere near the ultimate sentence," Judge Turnbull said.
"If people knew that this man had [spent] three months in custody and then on his [release] that his father got sick with COVID and then passed away."
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