SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
R v Page
Citation:
[2022] ACTCA 65
Hearing Date:
16 May 2022
DecisionDate:
23 November 2022
Before:
Mossop, Loukas-Karlsson and Rangiah JJ
Decision:
The appeal is dismissed.
Catchwords:
APPEAL – CRIMINAL LAW – Crown appeal against sentence – maintaining a sexual relationship with a young person – whether two years’ imprisonment wholly suspended was manifestly inadequate as to length and suspension – where sentencing judge impermissibly took into account “genuine affection” between victim and offender in mitigation of the sentence – consideration of objective serious and harm to victim where relationship resulted in pregnancy – sentence found to be manifestly inadequate – consideration of residual discretion – residual discretion exercised by majority – appeal dismissed.
I have had the benefit of reading in draft the reasons of Loukas-Karlsson and Rangiah JJ. I agree with their Honours’ reasons except in two respects. The first does not cause me to differ from the conclusion reached by their Honours but the second does.
Paragraph 23
The…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Page [2022] ACTCA 65
Case
[2022] ACTCA 65
Decision Date
CaseChat Overview and Summary
The appeal concerned a Crown challenge to a sentence imposed on the respondent, R v Page, for maintaining a sexual relationship with a young person. The sentencing judge had imposed a sentence of two years' imprisonment, wholly suspended. The Crown argued that this sentence was manifestly inadequate in both its length and the decision to suspend it entirely.
The central legal issue before the Court of Appeal was whether the sentencing judge had erred in law by impermissibly taking into account the "genuine affection" between the victim and the offender when determining the sentence. The Court was required to consider whether this factor, along with the objective seriousness of the offending and the harm caused to the victim, including the resulting pregnancy, rendered the original sentence manifestly inadequate. The Court also had to consider whether it should exercise its residual discretion to increase the sentence.
The majority of the Court found that the sentencing judge had indeed erred by giving undue weight to the perceived "genuine affection" in mitigation. They reasoned that while the subjective circumstances of the offender and victim could be relevant, the objective seriousness of the offence and the significant harm caused to the young victim, particularly the pregnancy, were not adequately reflected in the sentence. The Court concluded that the sentence was manifestly inadequate. However, by a majority, the Court ultimately dismissed the appeal, declining to exercise its residual discretion to impose a more severe sentence.