Director of Public Prosecutions v Cashion

[2014] VCC 222

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
Suitable for Publication

AT SHEPPARTON
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS
v
RICHARD SHANE CASHION	CR-12-01835

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Shepparton
DATE OF HEARING:	4 February 2014
DATE OF SENTENCE:	5 February 2014
CASE MAY BE CITED AS:	DPP v CASHION
MEDIUM NEUTRAL CITATION:	[2013] VCC 222

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D.R. Cordy	Office of Public Prosecutions
For the Accused	Mr C.F. Morgan

1

HIS HONOUR:  You, Richard Shane Cashion, have pleaded guilty before me to one count of indecent assault.  The circumstances of this crime are set out thoroughly in Exhibit 2, which was read to the court but moments ago by

Mr Cordy, who appears to prosecute this matter on behalf of the Crown.  In broad compass, these matters concerned events - in or about

5 October 2011. 

2Prior to that time in September 2011, a mutual friend of yours and the complainant's, one Gavin Saunders, moved into the complainant's house in Mooroopna. 

3On the first night that you stayed at the complainant's home, you became drunk and you were involved in an altercation with a person by the name of Ronald Slater, and you refused the complainant's request that you leave her home.  On 4 October you agreed to move out of her home the following day.  On that same day you and one Gavin Saunders arrived at her home at about 6 pm, bringing with you a substantial amount of alcohol, which you then drank, together with the complainant, and indeed some Xanax tablets were consumed by you and her also during the evening.  The complainant went to bed in the early hours of the morning of 5 October, and she had taken a number of Xanax tablets prior to going to bed, and she had given you no indication - that you could enter her bedroom on that evening, or that early morning. 

4She went to bed, and she obviously slept very heavily, because during the course of the evening, or the early morning, you had entered the bedroom and removed her tracksuit pants and underpants from one of her legs, and then ejaculated on her.  You then left the bedroom, and she remained asleep,  during this incident.  I have also had the opportunity of reading the relevant passage of the recorded interview, at Questions 115 to 126, which obviously further sets out the events on that night, and early morning, as best you could recall them.

5The complainant awoke at 9 am, and on having noticed the matters set out in paragraph H, she very understandably became very upset, as she believed you had had sex with her whilst she was asleep.  She then immediately confronted you, and all of this was observed by Gavin Saunders who was still in the house.  She rang 000 and requested police assistance to remove you from the house.  The police arrived shortly thereafter, and the complainant told the police that while she did not want to do anything about the rape, save for having you removed from the house, and you were then told to leave the house.

6In due course the complainant provided a statement to police and a number of forensic samples were taken and your DNA was located in the circumstances described. 

7There is also a victim impact statement provided in this matter, which I have received and marked as an exhibit, and as I noted earlier, it is clear that in the circumstances, the victim in this matter has set out her concerns and very appropriately notes that it has been a very stressful and difficult matter for her to deal with.  She notes, and I think it is of some significance that she says that you share the same community and she feels the shame and embarrassment of this matter having been hanging over her head for such a long time, and of course as she notes in the victim impact statement, this matter will always remain with her. She described it as a betrayal, and one can understand her choice of that term, given the fact that you have had a relationship with her, although as she says not of a sexual kind, but simply of some long standing, and in this relatively small community.

8She is, and I think it appropriate to note, relieved that the case is over without her being dragged through more, and for that of course you deserve some credit, that you have not prolonged her anxiety nor her shame, nor her pain.  And of course I refer to her emotional pain in particular.

9As was pointed out of course by your counsel, there are a number of mitigating factors which I am obliged to take into account in your favour, and I do so.  Firstly, you have pleaded guilty, you are entitled to have that fact taken into account in your favour, and I will do so, as I say.   It is no doubt the community has been, by your plea, spared the time and cost of a trial, and most significantly and importantly, as I have remarked in this case, the complainant has been spared the ordeal of giving evidence upon your trial, and that is a matter to which she drew attention in her victim  impact statement, very properly and appropriately.  And I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial. 

10Further, I bear in mind the circumstances of your plea of guilty, bearing in mind the submissions made on your behalf by Mr Morgan with respect to that matter, and indeed by Mr Cordy, with respect to that matter.  It is clear that whilst this charge to which you have pleaded guilty has always been available on the presentment, pursuant to the provisions of the Crimes Act, nevertheless, when that matter was brought to your attention, a plea of guilty was forthcoming. I do accept Mr Morgan's submission that that was, in the context of the case, an early intention, that is, it was a  relatively early intention to plead guilty. 

11You were quickly apprehended and your admissions, such as they are, have been referred to in the opening.  And as I say, I have had the opportunity to read them and have done so, and I accept that in the circumstances you were forthcoming with respect to your activities on the night, as best you could recall them, given the state you were in.  In the circumstances, your plea does indicate true remorse for your actions, as has been put on your behalf.

12I have been told a modest amount with respect to your personal circumstances.  You are 51 years of age, you are a pensioner, you reside in the area, you are an Aboriginal man, and that you and the victim are both members of the Aboriginal community of this area.  In particular it was put on your behalf that - and it was also set out in the Community Corrections Order assessment outcome report, that your ex-partner was with you for a period of 18 years, and that you have five children and the younger of whom is 16 years of age, and she will reside with you in a premises which you have very recently, and indeed today have been granted through the organisation known as Rumbalara. 

13There was an exhibit tendered to that effect from Mr Leon Saunders, the community support officer of Rumbalara, who has known you all his life, and he finds you, as he says, "an honest bloke, and worker, a good family man who takes care of his," it is there said two children, "and I find it very hard to believe that the charges - to believe the charges he is facing in court."  I do find it a little difficult to understand the reference to "worker" when it seems to me the evidence probably is that your working history is somewhat problematic.  Indeed it was put on your behalf that most recently you have been employed in Cairns, where you have been particularly successful in making didgeridoos, and since 2004/2005, and indeed it was your employment that apparently gave you some sense of self-respect and the fact that you were able to there remain in such a way as to not offend, and that stands to your credit.

14You are currently on a disability pension, but you pick fruit as and when you can, consistent with your responsibilities under the pension arrangements, so you do have some occasional employment in that regard. 

15As I say, most importantly, in the circumstances of your case, much can be gleaned from the analysis of your record of prior convictions, which of course is very extensive, beginning as it does in 1978 and through to and including the most recent appearances in the Shepparton Magistrates' Court in 2009. 

16I have gone through those - extensive list of prior convictions and noted with respect to them that of course what is apparent is that your addiction to drugs and alcohol is put as the explanation for this very significant list of offences committed by you over a protracted period.

17

I should, of course note, as was pointed out by counsel on your behalf, the significance of the period between 2005 and 2009, in which of course there are no offences recorded and the explanation for that is as was put by

Mr Morgan on your behalf, that at that stage, you were residing in Cairns.  You had employment and you were able to have some self-respect in that sense, both with respect to some permanence of accommodation and employment and it was said on your behalf that if you could again establish yourself in such circumstances, there was every prospect you could rehabilitate yourself.

18To that end, of course as I say, it is just today that you have been granted permanent accommodation through the Rumbalara organisation and you have been given those keys and you intend to take up that offer and I think in the circumstances, that is a very significant thing from you point of view, to assist in your rehabilitation.

19

I do not understand you being in any further trouble since this matter.  Indeed nothing has been brought to my attention and I do note that it is nearly

18 months since this offending occurred. 

20I am, on balance, satisfied the chance of your rehabilitation depend entirely on your ability to comply with the terms of the Community Corrections Order, which I intend to impose in this case, and if you are successful in completing and complying with the various orders I intend to make, over the next two years, if that is a time that I am able to order, then I think the community can have confidence in your rehabilitation, as I say, particularly in the circumstances where you demonstrated in that period of 2005 to 2009 that you are capable of rehabilitating yourself, if you can take up some meaningful employment and have some accommodation.

21As well as those matters personal to you, to which I have referred, including the question of rehabilitation, I must take into account such matters as deterrence and particularly general deterrence, which is always of considerable importance in cases such as these, and I say that particularly in light of the matters to which I have referred in the victim impact statement, which are of course of specific importance to the victim in this matter, but also the matters she highlights are the matters which are indeed relevant to the concept of general deterrence and how it must apply to cases such as this.

22Specific deterrence is important, generally in the sense that your of someone who has offended before, but as I say, not in such a way as - brings you before the court on this occasion.  I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending, which I find to be very much dependent on the successful completion of this Community Corrections Order.

23As I have noted, there has been some 18 months passed since the commission of this offence and during that time, I am sure that this matter has weighed heavily with you and the prospect of a gaol term, no doubt, has been something that has weighed heavily with you and you are entitled in those circumstances to the benefit of that from a sentencing point of view, and also I note that you have remained trouble-free, which for you is a significant matter, so you have utilised the passing of that time to reflect your rehabilitation and in view of that and particularly in view of the fact you have been granted accommodation, I think you should be provided with the opportunity to continue that commitment to your rehabilitation, which you have evidenced in the last 18 months.

24I will make the Retention Order sought by the prosecution on your behalf and I do so particularly in light of the prior convictions and the seriousness of your offending, which I have already remarked upon and you have not opposed that application and so I make that application.  This matter does not mean that the provisions of the Sex Offender Registration Act apply to you and I am no longer therefore obliged to consider those matters.

25As I say, this matter does cause me some concern and Mr Cordy rightly pointed out the Crown submission that some immediate imprisonment in the submission of the Crown was within the range, and having considered the matter, I do not share that submission for the reason that - or I do not adopt that submission simply because as I say, in the last 18 months you have revealed a commitment to your rehabilitation, you have been today provided with accommodation.

26I think in the circumstances, that you have pleaded guilty at this stage, saved the victim the embarrassment and difficulties of giving evidence, particularly in a case such as this, in a community such as this, these are all matters which you have weighed in your favour in the balance and accordingly it seems to me that there is no sentencing requirement for you to actually spend some time in gaol, although of course I am sure you will bear in mind that any breach of the terms of the Community Corrections Order, which I am about to order, in the next two years, will mean that you will be brought back before me and of course one of the inevitable consequences of such a breach are that you may well then be sentenced to gaol for such a breach.

27

So in the circumstances I will make an order.  And I understand two years

is - - -

28

MR CORDY:  Yes, so if I could just assist Your Honour with those

enquiries - - -

29HIS HONOUR:  Yes.

30MR CORDY:  - - -before Your Honour completes your sentencing remarks.

31HIS HONOUR:  Yes.

32MR CORDY:  The period - the maximum period of a Community Corrections Order is set out at s.38(1)(b).

33HIS HONOUR:  Yes.

34MR CORDY:  And in fact, Your Honour, the sections provides that the maximum period of an order in the County Court or the Supreme Court is, whichever is the greater of the maximum term of imprisonment for the offence, so in this case ten years, or two years, so there is considerable sentencing scope allowed by this part of the Act, although it's not submitted on behalf of the prosecution that Your Honour needs to go beyond the nominal maximum of two years.  That is an appropriate term in the circumstances of this case.

35HIS HONOUR:  Yes.

36MR CORDY:  But just as a point of interest, it would seem that up to the maximum penalty for any particular offence is available, which is an interesting aspect of these new provisions indeed.

37HIS HONOUR:  Yes.

38MR CORDY:  In terms of the maximum or the unpaid work condition, that's governed by s.48C(4), which provides, "The total number of hours for which and offender may be required to perform unpaid community work, under an unpaid community work condition, must be determined by the court and must not exceed 600 hours."  So it seems that Your Honour has discretion there.  Under sub-s.(5), "The total number of hours of unpaid community work that the offender must perform in any seven day period, must not exceed 20." 

39So given that Your Honour has expressed the intention of imposing a two year Community Corrections Order, it would seem that the upper limit is 600 hours and it's a matter for Your Honour's discretion as to what is an appropriate amount of unpaid hours, which - and I'll draw Your Honour's attention to of course s.48C(2), "The purpose of attaching an unpaid community work condition is to adequately punish the offender in the community", so that's the reasoning process that's submitted that Your Honour needs to look at in determining what is the appropriate number of hours to order.

40

HIS HONOUR:  Yes, thank you.  That is myself and Mr Cordy.  Anything,

Mr Morgan you would like to say with respect to any of that?

41MR MORGAN:  No, Your Honour. 

42

HIS HONOUR:  All right, thank you.  I think in the circumstances of those matters having been brought to my attention, for which I am very grateful, I am disposed to order - and for the reasons set out in the section, that the period of the order will be for two years and that there will be a significant unpaid community work component, and I say so in light of the submission that

Mr Cordy has made, by reflecting upon the terms of the section, it seems not only would such an order have benefit in terms of the section, but also will provide hopefully some collateral benefit to Mr Cashion, in the sense of

re-introducing him to the workforce in a meaningful context and with others similarly employed. 

43So I therefore propose to accept all the conditions as ordered as recommended by the author of the Community Corrections Order, which as I say, is one Ty Parsons, to whom I am not related, I must say, but I am grateful to him, I think, for those recommendations, so the order will be for a period of two years.  There will be a term of 400 hours of unpaid community work.

44Yes, if you would stand please Mr Cashion. 

45So Mr Cashion, this order will last for two years and it commences today and it will complete on 4 February 2015.  And you must attend the Shepparton Community Correctional Services within two clear working days and there are mandatory terms that apply to all Community Corrections Orders, and you have indicated your preparedness to abide by them, because of course you signed the Community Corrections Order, and you understand that when you consented to the making of such an order, that you consented to the fact that you were to abide - follow those mandatory terms.  Do you recall that?

46PRISONER:  Yes.

47HIS HONOUR:  All right.  So you must perform 400 hours of unpaid community work, over a period of two years, as directed by the regional manager.  These are in addition to the mandatory terms, that you must be under the supervision of the Community Corrections Officer for two years.  That you must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the regional manager.  You must undergo medical assessment and treatment, including but not limited to general or specialised medical treatment or treatment in a hospital or residential facility, as directed by the regional manager.  You must undergo mental health assessment and treatment, including but not limited to mental health psychological, neuropsychological and psychiatric in a hospital or residential facility, as directed by the regional manager.  And you must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the regional manager.  And importantly, you must not contact or associate with the complainant for a period of two years. 

48Now do you understand the effect and conditions of the order and do you consent to it being made?

49PRISONER:  Yes.

50HIS HONOUR:  All right, thank you, Mr Cashion.  Now I will just have that order prepared, and of course what you understand that any breach of that order will bring you back before me and then I will have to re-sentence you, and of course you understand that as a result of that, depending on what then is established, you run the risk of going to gaol.

51PRISONER:  Yes.

52

HIS HONOUR:  All right, so Mr Cashion, what was put on your behalf by

Mr Morgan is that you have previously been able to make a good fist of things and today you have got accommodation and I am making this order in the belief that you once again will be able to do just that, by having the assistance of people in the community, both at Rumbalara and elsewhere, to assist you with the difficult problems that you confront, but in the end it is all up to you.  You wanted the chance and you have been given the chance, so not it is up to you to make sure you take advantage of the chance. 

53All right, thank you Mr Cashion, have a seat and - yes, yes Mr Cordy.

54MR CORDY:  Yes, the other outstanding matter, Your Honour.  I don't think Your Honour's addressed it, unless I missed it, is a 6AAA declaration.

55HIS HONOUR:  Thank you, yes.  Yes, and but for the plea of guilty, I would have ordered a term of imprisonment of 12 months. 

56MR CORDY:  As Your Honour pleases. 

57HIS HONOUR:  All right, thank you, I have signed those orders, Mr Cashion.  All right, it is all up to you now, so you have got to make sure that for the next two years you make every post a winner, if not every post, all the major ones, because remember, hitting a hurdle means that we all come back here and we have to remind ourselves of what happened and it is not likely going to be a very happy thing for you, so good luck, I hope that things do turn out well for you and we do not have to see each other here again. 

58MR CORDY:  Thank you, Your Honour.

59HIS HONOUR:  Anything further, gentlemen?

60COUNSEL:  No, Your Honour. 

61HIS HONOUR:  Thank you.  All right, we will adjourn.  Thank you Mr Cashion, you can leave the dock, thank you.  Thank you.  Thank you Mr Cordy.  All right, thank you both, we will now adjourn.  Thank you.  ­­   

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