R v Cashion - [2014] SASCFC 68

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CASHION
[2014] SASCFC 68
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Vanstone)
2 July 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 pleaded guilty to three counts of unlawful sexual intercourse. The offending occurred over a protracted period while the appellant's son was also committing sexual offences against the victim who was aged between 13 and 15 years. The sentencing Judge applied the incorrect maximum sentence to counts eight and nine. The appellant was sentenced to one sentence of 11 years' imprisonment with a non-parole period of seven years' imprisonment. Despite the error, no lesser sentence is appropriate in the circumstances of the offending and the appellant's personal circumstances. (Kourakis CJ [25])
Held: Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 49; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 353, referred to.

R v CASHION
[2014] SASCFC 68
Court of Criminal Appeal: Kourakis CJ, Gray and Vanstone JJ

KOURAKIS CJ: This is an appeal against sentence.
The defendant and appellant, David Allan Cashion, was jointly charged with his son, Darren Cashion, with sexual offences against C. The information provided as follows:[1]
[1] As amended before the sentencing Judge on 3 September 2012.
DAVID ALAN CASHION
is charged with the following Offences
Eighth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
David Alan Cashion between the 1st day of December 2005 and the 28th day of February 2006 at Seaton, had sexual intercourse with [C], a person of the age of 14 years, by inserting his penis into her vagina.
Ninth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
David Alan Cashion between the 1st day of July 2005 and the 30th day of June 2006 at Pennington, had sexual intercourse with [C], a person of the age of 14 or 15 years, by inserting his penis into her vagina.
Tenth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
David Alan Cashion between the 1st day of December 2006 and the 1st day of March 2007 at Findon or another place, had sexual intercourse with [C], a person of the age of 15 years, by inserting his penis into her vagina.
The victim, C, was born on 24 April 1991. She was the younger half-sister of Darren Cashion’s domestic partner, M. C’s mother suffered from a mental illness and, being unable to care for C, left her in M’s care in March 2004, when she was 12 years of age. At that time M was 16 years of age and Darren Cashion 18 years old. The series of offences against C, which includes the charged offences, occurred when C was aged between 13 and 15 years. 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 68
Case: [2014] SASCFC 68
Decision Date: 2 July 2014

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, R v Cashion, before the Full Court of the Supreme Court of South Australia. The dispute revolved around the appellant's contention that his sentence was excessive.

The central legal issue before the court was whether the sentence imposed upon the appellant was demonstrably unjust or disproportionate to the gravity of the offending and the appellant's personal circumstances. The court was required to consider the totality of the circumstances in determining the appropriateness of the sentence.

The Chief Justice, with whom Gray and Vanstone JJ agreed, found that the appellant's personal circumstances offered little mitigation for his offending. Consequently, the court concluded that no lesser sentence could be justified given the circumstances of the offending and the appellant. The appeal was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant’s personal circumstances do not much mitigate his offending. In my view, no lesser sentence can be justified in all of the circumstance of the offending and the appellant.Conclusion I would dismiss the appeal. GRAY J: I agree that the appeal should be dismissed. I do not wish to add to the reasons of the Chief Justice. VANSTONE J: I agree that the appeal should be dismissed and with the reasons the Chief Justice has prepared.

Ratio Decidendi

Legal Principle Established

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