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 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].
In November 2004 the appellant, M and C moved from Woodville Gardens to a house in Ethelton. David Cashion continued to stay with them from time to time. On one such occasion David Cashion came across C and the appellant in the backyard of that home whilst C was performing fellatio on the appellant. The appellant ordered C to go inside. As she left, C heard the appellant tell his father words to the effect that if he did not disclose what he had seen he too could have sex with C. Both the appellant and his father then maintained an unlawful sexual relationship with C which the sentencing Judge summarised as follows:
It was C’s evidence, and I accept it, that your father caught you in the act of count 4, and you offered to allow him to have sex with C provided he did not tell anyone that you were doing it as well. Your father began having sex with C on a regular basis after that. She said he came into her room that same night and had vaginal sexual intercourse with her.
The level of depravity which then existed was such that you and your father used to take turns in having sexual intercourse with C while M was asleep or out of the house. You would keep watch for each other. C said that M was aware of her relationship with your father but not aware of your relationship with her as well.
The abuse occurred almost daily. When C sometimes refused to engage in sexual activity with them they would become violent and would physically and verbally abuse her.
C lived in the Ethelton house with her sister and the appellant until October 2005. They later resided in a house in Seaton until March 2006. C moved into the Pennington home of David Cashion after March 2006. There she fell pregnant and her child was born on 1 November 2007. C was unsure of the paternity of her child but DNA testing showed that David Cashion was the father.
It was not until after her child was born when C was living in a home for young single mothers that she complained of the abuse she had suffered from both the appellant and his father.
The appellant’s father pleaded guilty to three counts of unlawful sexual intercourse on the morning of the first day of his trial on 3 September 2012. He was sentenced a year later because of his equivocation as to whether he intended to maintain his plea and as to the factual basis of his plea.
Personal circumstances
The appellant was born on 17 January 1986. His cognitive functioning was reported by psychologist, Ms Jolly, to be consistent with his year 10 level of education. The appellant has a long history of cannabis abuse.
The appellant’s parents separated when he was 14. Thereafter he spent most of his time with his father. The appellant met M in 2002, when he was 16 years of age and she was 15. When M was provided with housing trust accommodation in Woodville West the appellant moved in with her. In 2004 they moved into permanent housing trust accommodation in Woodville Gardens.
The appellant left Findon High School in year 11 when he was aged 17. He was employed for short periods as a manual labourer before commencing work in 2004 for a contract cleaning company at the Queen Elizabeth Hospital.
He was convicted of non-aggravated serious criminal trespass in 2007 and was sentenced to a suspended four month term of imprisonment. He has several other relatively minor prior offences.
Resentencing
In R v D,[3] in a judgment with which the rest of the Court agreed, Doyle CJ established the following general standard for offences of unlawful sexual intercourse with children:[4]
They are offences that cause a feeling of outrage and revulsion in the community. The penalty must reflect that feeling. They involve a serious breach of trust. As this case makes clear, such offences cause serious harm to the victim in many cases. There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong. The courts must do what they can to protect children from such conduct. Deterrence is an important part of sentencing for an offence such as this. Although reasons for the offending vary, and sometimes the offenders are persons who were themselves sexually abused as children, it seems clear that such offenders are not usually persons who are unable to control their sexual instincts. While acknowledging that the punishment of offenders is only one factor that may limit the incidence of this offence, the courts must proceed on the basis that punishment has a part to play in deterring offenders.
Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.
It appears that the sexual abuse of children by persons in a position of trust is quite widespread … the offences that are involved come before the courts with disturbing frequency. It is for those reasons that I consider that the court should increase, to a moderate degree, the level of penalty imposed for such offences.
…
In my opinion offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract as a starting point a head sentence of about 12 years imprisonment. In saying that I refer to a sentence imposed under s 74(7) of the Act and to a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA). …
When the child in question is over 12 years of age, in my opinion that starting point in such cases should be a head sentence of about 10 years imprisonment.
[3] (1997) 69 SASR 413.
[4] R v D (1997) 69 SASR 413 at 423-424.
The benchmark set in R v D was given legislative recognition by s 29D of the Criminal Law (Sentencing) Act 1988 (SA). Section 29D describes the benchmark set by R v D as one that reflects “an emerging recognition by the judiciary and the community generally of the inherent seriousness of offences involving paedophilia”. The purpose of s 29D is to apply the sentencing standards which emerged from that recognition to offences committed before the decision in R v D.
I referred to the impacts upon the community of offending of this kind in R v MJJ; R v CJN:[5]
There is no doubt that victims of sexual abuse and their families carry a substantial psychological and financial burden. There is also a great social cost to the community. Community anxiety about sexual offending curtails the freedom of children to explore their environment in a way which is a necessary part of their psycho-social development. It also generates increasing suspicion and sensitivity about completely innocent behaviours. The great personal and social harm caused by sexual offending against children demands a strongly deterrent sentencing response.
[5] R v MJJ; R v CJN (2013) 117 SASR 81 at [84].
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.
On the other hand, the appellant fell to be sentenced not only for his repeated acts of unlawful sexual intercourse but also for two serious rapes in which he had persisted with his offending despite C’s pleas that he stop and her protestations of pain.
Moreover, the appellant was in a position of trust with respect to C. He had accepted her into the home which he had established with her sister. I acknowledge that the appellant had undertaken that responsibility at a very young age. However it is not uncommon for very young adults, and indeed on occasion some children, who have had such heavy responsibilities thrust on them, to discharge them well. In the case of the appellant it was not simply a matter of finding it difficult to cope with the responsibility. He abused it to satisfy his own prurient interests.
I conclude that there was insufficient reason in the circumstances of this case to impose a sentence below the standard set in D. The non-parole period was a merciful one. Considerations of general and specific deterrence prevent any lesser proportion being fixed.
I am satisfied that no lesser sentence than that imposed by the sentencing Judge is warranted in this case. I would therefore dismiss the appeal.
PARKER J: I would dismiss the appeal. I agree with the reasons of Kourakis CJ and have nothing to add.
DUGGAN AJ: I would dismiss the appeal for the reasons given by the Chief Justice.