R v Ralston

[2019] ACTSC 236

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Ralston

Citation:

[2019] ACTSC 236

Hearing Date:

27 August 2019

DecisionDate:

27 August 2019

Before:

Elkaim J

Decision:

See [21]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – use of a carriage service to groom person under 16 years of age – Instagram messages – suspended sentence – recognisance release order

Legislation: 

Crimes Act 1914 (Cth) s 20

Criminal Code 1995 (Cth) s 474.27(1)

Cases Cited:

R v Asplund Asplund v R [2010] NSWCCA 315

R v Costello [2011] QCA 39
R v Nahlous [2013] NSWCCA 90; 273 FLR 232

Meadows v The Queen [2017] VSCA 290

Parties:

The Queen (Crown)

Andrew Ralston (Offender)

Representation:

Counsel

A Sim (Crown)

S McLaughlin (Offender)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 250 of 2018

ELKAIM J:

1. On 3 June 2019 a jury found the offender guilty of a single count in an indictment dated 31 October 2018, namely using a carriage service to groom a person under 16 years of age (CC18/8691).

1. The offence is one contrary to s 474.27(1) of the Criminal Code1995 (Cth). The maximum penalty is 12 years’ imprisonment.

1. The offender was not in court to hear the jury’s verdict because he had been committed, involuntarily, to a mental health facility after the jury had retired to consider its verdict. The verdict was taken with the consent of both parties and there was no suggestion of any unfitness on the offender’s part to either plead or stand trial.

1. The complainant was an 11 year-old girl, TR, who was the daughter of a woman who was dating the offender. The offender was an Instagram friend of TR and over a period of some months communicated with her by sending her messages via the online platform.

1. At first sight, a number of the messages might be seen as having constituted the offence. However the indictment was specific as to the time period (25 March 2018 to 13 April 2018) during which the incriminating messages were alleged to have been sent. The evidence in the case did not allow any conclusion to be reached about the date of sending of any of the messages, other than the last two, sent on 13 April 2018. While the other possibly incriminating messages might be regarded as of contextual relevance they cannot be seen as forming the basis upon which the offender was convicted.

1. The messages that I am satisfied the jury found, beyond reasonable doubt, as constituting the offence, had been sent by the accused to the complainant on 13 April 2018. They were: “I want to see your nude body”, followed immediately by “Yes or no”.

1. I am satisfied that the jury found, again beyond reasonable doubt, that these messages had been sent by the offender with the intention of making it easier to procure the complainant to engage in sexual activity with him. The offender did not take issue with this conclusion. His defence was run entirely on the assertion that he had not sent the messages to the complainant.

1. Any grooming offence is serious. However when an assessment of objective seriousness is made it is necessary to compare the relevant facts against those within the range of possible facts. Because of the limitation I have found on the offending I think it must follow that the objective seriousness of the offence must be regarded as below medium.

1. This finding should not be seen as ameliorating in any way the abhorrence which must be expressed as arising from offender’s conduct.

1. The offender was born in 1969. He has five older siblings with whom he does not maintain contact. He nevertheless had a positive upbringing with his father being his main source of support.

1. The offender has one child but does not have contact with that child due to a protection order against him lodged by the child’s mother.

1. The offender left school at the end of Year 9. He has been in steady employment mostly with the Australian Defence Force and with the Australian Federal Police, the latter in a civilian position. He resigned from the AFP following the charges being made against him. He currently relies on Centrelink for his income.

1. The offender does not have any criminal record. Although this is usually a fact giving rise to significant leniency, the significance is diminished in matters of this type.

1. The offender has had some serious mental health issues, as described in the forensic psychiatric report by Dr Barker (Exhibit B). The report says that the offender has a current diagnosis of an “adjustment disorder with mixed disturbance of emotions and conduct” and also “a differential diagnosis of a major depressive disorder, moderate”.

1. The report goes on to suggest that imprisonment will be made more difficult for the offender because of his mental health condition.

1. The Crown provided me with four comparative cases. They are Asplund v R [2010] NSWCCA 315; R v Costello [2011] QCA 39; R v Nahlous [2013] NSWCCA 90; 273 FLR 232 (Nahlous); Meadows v The Queen [2017] VSCA 290. The offender submitted that the most applicable of these cases was Nahlous and that it was accordingly appropriate, in the present case, to not impose a sentence of full-time imprisonment on the offender.

1. The Crown pointed out that the offender in Nahlous had pleaded guilty and expressed considerable remorse. Accordingly Nahlous was not a case which justified a sentence of other than full-time imprisonment.

1. I agree with the Crown’s general submission that imprisonment should almost flow automatically from conviction for an offence of this type. The grooming of children for sexual gratification of a person, and possibly sexual assault of the child is so reprehensible that prison should generally follow.

1. However as explained in Nahlous this is not an inevitable conclusion. It is also to be noted that Nahlous, despite the plea of guilty, involved an offender who had sent more than a thousand messages, most of them of significantly more sexually detailed than the two messages in the present case.

1. I think this is a case where the exception can be applied so that the offender does not serve a period of full-time imprisonment. I think a lengthy period of being subject to a supervision order will meet the community’s interests as well as signify, by way of general deterrence, how seriously the courts look upon this type of conduct.

Orders

1. I make the following orders:

(a)For the offence of using a carriage service to groom a person under 16 years of age (CC18/8691), the offender is sentenced to 24 months’ imprisonment commencing on 27 August 2019 and ending on 26 August 2021.

(b)The above sentence of imprisonment is suspended with immediate effect on condition the offender enter into a recognisance release order in the sum of $500 for three years duration and to be of good behaviour and to be supervised by the Director-General of ACT Corrective Services.

I certify that the preceding twenty one [21] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 27 August 2019