R v Ang

This matter came before the Court of Appeal of the Supreme Court of the Australian Capital Territory, with Refshauge, Penfold and Ross JJ presiding. The Crown appealed against a non-conviction order made by a sentencing judge in favour of the respondent, who had pleaded guilty to one offence of an act of indecency without consent. The respondent was a foreign national studying at the Australian Defence Force Academy and the offence was committed against another cadet.

The primary legal issues before the Court of Appeal were whether the sentencing judge had erred in their approach to the impact of the respondent living in a different environment in Australia as a potential extenuating circumstance, and whether this impact could otherwise be taken into account by the sentencing judge. The Crown also contended that the sentence was manifestly inadequate. The Court considered the grounds of appeal, noting that appeals against sentence require the identification of specific errors or a claim of manifest inadequacy or excess from which error can be inferred, rather than simply disagreeing with the weight given to particular matters.

The Court of Appeal found no error in the sentencing judge’s approach to the impact of the respondent’s different environment. It held that an appeal court is not entitled to substitute its own opinion for that of the sentencing judge unless there is a demonstrable error. The Court concluded that the sentence imposed was not manifestly inadequate, and therefore the grounds of appeal were not made out. The Court also addressed a submission regarding judicial notice of a breach of trust, finding that such notice could not be taken of a proposition that was not clearly articulated to the court.

The appeal was dismissed.