Cashin v The Queen

Case [2017] ACTCA 13


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
GW v The Queen [2015] ACTCA 56; 306 FLR 104
MacKenzie v The Queen [1996] HCA 35; 190 CLR 348
MFA v The Queen [2002] HCA 53; 213 CLR 606
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
O’Brien v The Queen [2015] ACTCA 47
R v Asplund [2010] NSWCCA 316; 216 A Crim R 48
R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315

Zdravkovic v The Queen [2016] ACTCA 53

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:

  1. 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.

  1. 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.

  1. 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
Case
[2017] ACTCA 13
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction and sentence imposed on the appellant, Cashin, by the Supreme Court of Queensland. The central dispute revolved around the jury's delivery of inconsistent verdicts and whether these verdicts rendered the conviction unsafe and unsatisfactory. Additionally, the appellant challenged the accumulated sentences, arguing they were manifestly excessive. The appeal was heard by Burns, Mossop, and Rangiah JJ of the Supreme Court of Queensland.

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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