Prosecutors last week challenged in the Supreme Court a controversial probation sentence handed down by a magistrate to a former Customs officer for a sex offence.

The ruling was handed down last July by then-Senior Magistrate Archibald Warner - now an Assistant Justice in the Supreme Court.

Glen O'Neil Alban admitted sexually fondling a 12-year-old girl. Alban is understood to have resigned his senior post within the Customs service shortly before his conviction.

Crown counsel Oonagh Vaucrosson characterised probation in Alban's case to Puisne Judge Norma Wade-Miller as "manifestly inadequate" and called for the immediate imprisonment of 40-year-old Sandys man.

Mrs. Vaucrosson said Mr. Warner did not fulfil the intent of the legislation, when he sentenced Alban to three years probation and treatment.

She told Mrs. Justice Wade-Miller that the punishment for sexual assault convictions had increased. And she pointed out that according to the Criminal Code, such an offender can be jailed for as much as five years.

Mrs. Vaucrosson argued that the increase in penalty "is because of the prevalence of these offences and also because they are so serious".

But Alban's lawyer, Marc Telemaque called a custodial sentence the "easy option".

"It does not intervene in the behaviour pattern," said Mr. Telemaque.

He said that unless the criminal justice system is able to intervene and affect the behaviour, a custodial sentence will just be for "retribution".

He called members of the public who want to imprison troubled convicts without treatment, "short-sighted".

"This court should support (the sentence) but also be seen to support it because it serves the community best," said Mr. Telemaque.

Mrs. Vaucrosson referred to case law several times throughout the appeal and Mr. Telemaque said the case law examples are not relevant.

"What is achieved by immediate custodial sentence?" he asked Mrs. Wade-Miller. "When this bundle (prosecution's submissions) raps on about serious sexual assault, none of the cases assist to the issue because as you rightly pointed out, it is a question of degree."

The appeal was adjourned to a date to be set by the Supreme Court Registrar. In the meantime Mrs. Justice Wade-Miller said she will review the case law for this kind of offence.