R v Cashion - [2014] SASCFC 138

Supreme Court of South Australia
(Court of Criminal Appeal)
R v CASHION
[2014] SASCFC 138
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Parker and The Honourable Auxiliary Justice Duggan)
23 December 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - MAXIMUM SENTENCE - GENERALLY
The appellant was charged with two counts of anal and vaginal rape, and five counts of unlawful sexual intercourse with a 13 year old female between September 2004 and 30 May 2006. The appellant was convicted by Judge alone and sentenced to 12 years imprisonment with a non-parole period of six years. The sentencing Judge incorrectly applied the maximum penalty for the offences of unlawful sexual intercourse, vitiating the sentence.
Held Kourakis CJ (Parker J and Duggan AJ agreeing) dismissing the appeal:
There is insufficient reason in the circumstances put by the appellant to impose a sentence below the standard set in R v D, and of that imposed by the sentencing Judge. Considerations of general and specific deterrence prevent any lesser proportion being fixed. [Kourakis CJ at [..] and [..])
Criminal Law (Sentencing) Act 1988 (SA) s 29D; Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA) s 15, referred to.
R v D (1997) 69 SASR 413, applied.
R v MJJ; R v CJN (2013) 117 SASR 81; R v Marrien [2011] SASCFC 116, discussed.
Arnold v Samuels (1972) 3 SASR 585, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"mitigating factors", "general deterrence", "specific deterrence"

R v CASHION
[2014] SASCFC 138
Court of Criminal Appeal: Kourakis CJ, Parker J and Duggan AJ

KOURAKIS CJ: The appellant, Darren Jordan Cashion, was charged with two counts of anal and vaginal rape of C who was aged 13 years. He was also charged with five counts of unlawful sexual intercourse with C over a period of close to two years between September 2004 and 30 May 2006.
The appellant was convicted after a trial by judge alone. On 8 March 2013 he was sentenced to 12 years imprisonment with a non-parole period of six years. The sentencing Judge mistakenly sentenced the appellant on the basis that the maximum penalty for the offences of unlawful sexual intercourse was, at the relevant time, 10 years imprisonment when it was in fact seven years imprisonment.[1] The Director of Public Prosecutions accepts that that error vitiates the sentence and it falls for this Court to resentence the appellant to the sentence it thinks should have been imposed. If that sentence is no less than the sentence in fact imposed, the appeal must be dismissed.
[1] The maximum penalty was increased from seven years to 10 years by the Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA) s 15, which came into force on 15 May 2006.
The facts
C was born on 24 April 1991. In 2004 when the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cashion

Details

AGLC: R v Cashion [2014] SASCFC 138
Case: [2014] SASCFC 138
Decision Date: 23 December 2014

CaseChat Overview and Summary

The appellant, R v Cashion, appealed his sentence of 12 years imprisonment with a non-parole period of six years, imposed by a judge alone. The sentencing judge had mistakenly applied a maximum penalty of 10 years imprisonment for the offences of unlawful sexual intercourse, when the correct maximum penalty at the time was seven years. The Director of Public Prosecutions conceded this error vitiated the sentence, and the appellate court was tasked with resentencing the appellant.

The central legal issue before the court was to determine the appropriate sentence for the appellant, considering the error in the original sentencing and the specific circumstances of the offending. This involved assessing the weight to be given to mitigating factors, such as the appellant's youth at the time of the offences, and comparing his conduct to that of his father, who also participated in the abuse. The court was required to apply established sentencing principles, including the standard set in *R v D*, and consider whether the particular facts warranted a departure from that standard.

The court acknowledged that youth is a significant mitigating factor, noting that the appellant, though over 18, had not yet developed the full maturity of an adult. However, it also recognised that the appellant was employed and in an adult relationship. The court found that the appellant's offending was not rendered less serious by his father's involvement; rather, the father joined in the abuse at the appellant's suggestion and with his support. While the appellant's youth and the smaller age gap between him and the victim might warrant some amelioration of the standard sentencing approach, the court emphasised that the appellant's conduct was not made less serious by his father's delinquency.

The court ultimately resentenced the appellant to 10 years imprisonment with a non-parole period of five years. This outcome reflected a reduction from the original sentence, acknowledging the sentencing error and the mitigating factor of the appellant's youth, while still imposing a substantial penalty for the serious nature of the offences.

Orders

Orders of the court

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Background

Background to the litigation

The appellant was convicted after a trial by judge alone. On 8 March 2013 he was sentenced to 12 years imprisonment with a non-parole period of six years. The sentencing Judge mistakenly sentenced the appellant on the basis that the maximum penalty for the offences of unlawful sexual intercourse was, at the relevant time, 10 years imprisonment when it was in fact seven years imprisonment.[1] The Director of Public Prosecutions accepts that that error vitiates the sentence and it falls for this Court to resentence the appellant to the sentence it thinks should have been imposed. If that sentence is no less than the sentence in fact imposed, the appeal must be dismissed. [1] The maximum penalty was increased from seven years to 10 years by the Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA) s 15, which came into force on 15 May 2006.The facts C was born on 24 April 1991. In 2004 when the appellant was 18 years old he was living at a house in Woodville Gardens with C’s sister, M. M was then just 16 years of age and C was 12. The appellant’s father, David Cashion, would also stay at the Woodville Gardens home from time to time. David Cashion is a long term methylamphetamine addict and at the time received a disability pension. He had his own home at Pennington but on occasion would stay with the appellant in the Woodville Gardens home. In 2004 the appellant worked as an orderly/cleaner at the Queen Elizabeth Hospital. M was admitted to hospital in late September or early October 2004 to give birth to her and the appellant’s child. It was during this time that the appellant raped C. Thereafter the appellant had penile-vaginal and oral sexual intercourse with C three or four times a week until about May 2006. In his reasons for judgment the trial Judge summarised the rape allegations as follows:[2]It is alleged that this occurred at the Woodville Gardens house on about 30 September 2004. C gave evidence that it happened two days before E was born. M was in hospital at the time. C was drinking spirits and coke with David Cashion and Darren Cashion. She was also given cannabis. She smoked it in a bong with some crushed pills on top. She felt sleepy.C said that David Cashion had fallen asleep. She was also starting to fall asleep. Darren Cashion picked her up off the couch and carried her to her room. She was ‘out of it’ and could not move. Once in the room, she was on her hands and knees, and Darren Cashion put the head of his penis in her anus. It hurt and she cried. She told him to stop because it hurt. Darren told her to be quiet or she would wake his dad (T 81). C said that after the events in count 1, she ended up on her back and Darren put his penis in her vagina. Again it hurt, and she told him to stop. She could not do anything to get him to stop because of the alcohol and cannabis she had taken. Even though it was dark at the time, C was in no doubt that these acts were performed by Darren Cashion. She said she could tell because of the difference in build between Darren and David, and because she recognised his voice (T 82).[2] R v Cashion [2012] SADC 132 at [19]-[22].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The standard set by R v D is intended to apply in the generality of cases. It is an authoritative statement of this Court which has been legislatively endorsed by s 29D of the Criminal Law (Sentencing) Act 1988 (SA). The particular circumstances of the offender or the offence may give good reason to reduce or increase the starting point of the standard set in D. Indeed there may be some cases in which the surrounding circumstances and/or the offender’s antecedents render the standard inapplicable. However, there must be a reason in the particular factual circumstances of the offence or the offender to modify the sentencing standard established in D or to depart from it. If the particular circumstances of an offence are not as grave as, or the prospects of rehabilitation of the offender are significantly better than the generality of cases, some modification downwards of the standard might be accepted. If the nature and consequences of the offending are more serious, or the prospects for rehabilitation relatively poorer, some upward adjustment might be expected. Only when the circumstances of the offence and/or the offender fall well outside of the generality of cases contemplated by the statement in R v D is there any warrant to depart from the standard it sets. I do not read the judgment in R v Marrien[6] to say anything different on this matter of principle. [6] [2011] SASCFC 116 at [26]-[27].Consideration In contending for a sentence which was less than the sentence imposed by the Judge, the appellant relied heavily on his relatively young age at the time the offending commenced. The appellant also submitted that a lesser sentence was necessary to properly differentiate his less serious offending from that of his father. Youth is an important mitigating factor. As Bray CJ observed in Arnold v Samuels[7] the policy reasons for the special statutory sentencing regimes established for children do not suddenly dissipate when the clock strikes midnight on the day before an offender’s eighteenth birthday. It can be accepted that the appellant had not yet developed the understanding, self control and discipline of a mature adult. On the other hand, he had been in employment for some time and had accepted the responsibility of entering into an adult relationship with M.[7] (1972) 3 SASR 585 at 596. True it is that the appellant’s father should have had the maturity and moral responsibility to have brought the appellant’s offending to an end. Instead he joined in the abuse. Be that as it may, the appellant’s offending is not made any less serious by his father’s delinquency. Indeed his father joined in the offending at the suggestion of, and with the support, of the appellant. Moreover, the appellant’s father by reason of decades of drug abuse was at this time financially dependent on the appellant. Nonetheless I accept that all other things being equal, the appellant’s relatively young age and the lower age differential between himself and C may have called for some amelioration of the D standard.