An appeal court has declared the suspended jail term imposed on a Canberra child sex offender was inadequate, but he will not be locked up after a majority of judges found prison time at this point would be "counterproductive".
Darcy Edward Page, 23, faced the ACT Court of Appeal on Wednesday, when a prosecution appeal against his two-year jail sentence was dismissed.
Page, a landscaper, received the suspended sentence in August 2021 after pleading guilty to a charge of maintaining a sexual relationship with a child.
He committed the crime between June 2018 and February 2019, when he was aged 19 and the victim was just 15.
The sentencing judge, Justice John Burns, said the offence involved 44 sexual acts, which included 30 "episodes" of intercourse.
One in particular had life-changing consequences for the victim, who fell pregnant and gave birth to a child at the age of 16.
During sentencing, Justice Burns said he had taken into account factors that included messages between Page and the victim indicating the pair had "a genuine affection" for each other throughout the offending.
The victim was said to have shown a "willingness" to have sex with Page during the period in question, but the fact she was underage negated any consent she gave.
The ACT's Director of Public Prosecutions, Shane Drumgold SC, appealed at a hearing in May, arguing Page's sentence was "manifestly inadequate".
He complained about both the length of the two-year term and the fact it was wholly suspended.
Mr Drumgold also took aim at the finding about "genuine affection", arguing this should not have been regarded as a mitigating factor.
Page's counsel, James Sabharwal, told the court this finding had been made merely to contextualise statements the victim, described by Justice Burns as now holding "a great deal of animosity" towards Page, had made about the harm she had suffered.
Mr Sabharwal further argued Justice Burns had appropriately considered all relevant sentencing factors and even if the penalty was lenient, it was not manifestly inadequate.
Three appeal judges disagreed with him on Wednesday, all finding the sentence was manifestly inadequate.
One of the trio, Justice David Mossop, said it had "failed to reflect the seriousness of the office or the gravity of the consequences for the victim".
Justice Mossop acknowledged Page had, since being sentenced, done more than half the community service hours required as a condition of the good behaviour order attached to his suspended jail term.
While he said it was "not an easy or attractive course" to resentence a person who had received a suspended jail term to full-time imprisonment, the judge believed that was the right thing to do in this case.
Justice Mossop ultimately said he would resentence Page to three years and nine months in jail, with nine months to be served behind bars and the rest of the term suspended.
Justice Chrissa Loukas-Karlsson and Justice Darryl Rangiah indicated they would, if required to resentence Page, impose a three-year jail term.
The pair said they would also suspend the balance of the sentence after nine months.
However, the duo decided to exercise their discretion not to resentence Page.
They also considered the 172 hours of community service Page had already performed as part of his existing sentence, and looked at the likely impact of incarceration upon him.
"Taking into account the community service already done, any term of imprisonment now required to be actually served by the offender would be modest," the two judges said.
"Short terms of incarceration for young offenders are generally undesirable.
"In our opinion, requiring the offender to serve a short period of actual imprisonment would be counterproductive to his rehabilitation."
Given Justice Loukas-Karlsson and Justice Rangiah formed a 2-1 majority, Mr Drumgold's appeal was dismissed.
