SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Cashin v The Queen |
Citation: | [2017] ACTCA 13 |
Hearing Date: | 16 February 2017 |
DecisionDate: | 24 April 2017 |
Before: | Burns, Mossop and Rangiah JJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – Appeal against conviction and sentence – where the jury delivered inconsistent verdicts – whether the verdicts are unsafe and unsatisfactory – where the sentences were accumulated –whether the sentences imposed were manifestly excessive. |
Legislation Cited: | Criminal Code Act 1995 (Cth) ss 474.26, 474.27, 474.27A Crimes Act 1900 (ACT) s 61(2) |
Cases Cited: | Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 DPP (Cth) v FM [2013] VSCA 129; 45 VR 64 |
Parties: | David John Cashin (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr J Lawton (Appellant) Ms M Jones (Respondent) |
| Solicitors Rachel Bird & Co (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 54 of 2016 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Rares J Date of Decision: 5 December 2016 Case Title: R v Cashin Citation: [2016] ACTSC 351 |
THE COURT:
The appellant came to trial before Rares J and a jury on 19 September 2016. He faced an indictment containing 13 Counts. At the commencement of the trial he pleaded guilty to Count 12, namely the use of a carriage service to transmit an indecent communication.
On 23 September 2016, the jury returned a verdict of guilty on Counts 1, 2, 9, 10, 11 and 13. Verdicts of not guilty were returned on Counts 3, 4, 5, 6, 7 and 8.
On 5 December 2016, the appellant was sentenced in respect of the offences to which he had been found, or pleaded, guilty. He was sentenced as follows:
(a)Count 1 (act of indecency with young person) – a period of imprisonment of 2 years to commence on 23 September 2016;
(b)Count 2 (act of indecency with young person) – a period of imprisonment of 2 years and 6 months to commence on 23 December 2016;
(c)Count 9 (use carriage service to transmit indecent communication to person under 16) – a period of imprisonment of 2 years commencing on 23 December 2017;
(d)Count 10 (use carriage service to transmit indecent communication to person under 16) – a period of imprisonment of 2 years commencing on 23 January 2018;
(e)Count 11 (use carriage service to transmit indecent communication to person under 16) –…
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- Cashin v The Queen [2017] ACTCA 13
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CaseChat Overview and Summary
The court was required to determine two primary legal issues. Firstly, whether the jury's inconsistent verdicts meant that the conviction could not stand as being unsafe and unsatisfactory. Secondly, the court had to consider whether the accumulated sentences imposed by the trial judge were manifestly excessive, thereby warranting appellate intervention.
In addressing the inconsistency of the verdicts, the court applied the principles established in cases such as *R v Hogan* and *R v Kiltie*, which permit a conviction to stand despite inconsistent jury findings, provided the jury was properly instructed and the conviction itself is otherwise supportable by the evidence. The court found that the jury had been adequately directed and that the evidence supported the conviction on the counts for which the appellant was found guilty. Regarding the sentences, the court reviewed the sentencing remarks of the trial judge and considered the relevant sentencing principles, including the gravity of the offences and the need for deterrence and punishment. The court concluded that the accumulated sentences were not demonstrably outside the range of a reasonable sentence, nor were they so severe as to be considered manifestly excessive.
Consequently, the appeal against both conviction and sentence was dismissed.
Orders
Orders of the court
The appeal is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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