A judge who sentenced a former Children's Court security guard to a good behaviour bond for having sex with a 14-year-old he'd met at court, after describing the girl as "nubile" and saying the man was "not made of steel", treated the man's attraction to the girl as an excuse, a court has heard.
Franco Abad was sentenced to a two-year good behaviour bond in August for one count of sexual penetration of a child under 16.
The public prosecutor challenged the punishment as "manifestly inadequate" in the Court of Appeal on Monday.
Kerri Judd, QC, said the court needed to send a message to adults that they could not have sex with under-age children, regardless of whether they were tempted to do so.
Abad, then 31, met his victim outside the Children's Court building last year, and was in a sexual relationship with her for some weeks, believing she was 17, over the legal age of consent of 16.
He was charged with having sex with her once more in August 2015, after police advised him that she was actually 14 and living in a Department of Human Services-run residential care unit.
County Court Judge Christopher Ryan sympathised with Abad, saying that it was an unusual case.
Abad had had sex with the girl after confronting her about her age, and telling her the relationship was over, despite her insistence she was 17.
"Then he goes to bed and is joined by a young woman. Well, he's not made of steel," Judge Ryan remarked.
Before delivering his ruling, Judge Ryan also described the victim as "nubile" and "worldly"..
Ms Judd said she could not push for a jail term due to concessions made by a prosector earlier in the case, and instead requested Abad receive a community corrections order.
Ms Judd said Judge Ryan had failed to analyse Abad's moral responsibility for his crime.
"The judge ought not to have made those comments as mitigating the moral culpability," she said.
"The fact that a man is attracted to a [14]-year-old is not in any way an excuse for his behaviour.
Ms Judd argued that the sentence did not sufficiently denounce the man's crime, given the age difference between the pair, and the fact that he had sex with the girl despite police warning she was under-age.
"This is why this court ought to impose a higher sentence to send a message to adult members of the community that they simply must not engage in this behaviour, no matter what the temptations are, no matter what the history was between them."
Defence counsel Richard Edney said that the sentencing judge, prosecution and defence had all agreed that Abad had a low level of moral responsibility for this crime, and that the sentence sufficiently denounced it.
Chief Justice Warren, Justice Simon Whelan and Justice Beale reserved their decision.