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

1. KOURAKIS CJ:   This is an appeal against sentence.

2. 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.

3. 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 appellant was then aged between 42 and 45 years.

4. The appellant pleaded guilty to the three counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) on the morning of the first day of trial on 3 September 2012. However, more than a year passed before the appellant was sentenced because he disputed the factual basis on which he fell to be sentenced. He later withdrew that challenge only to apply to withdraw his plea, an application which was also eventually withdrawn. Finally, on 19 December 2013, he was sentenced pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to one sentence of 11 years’ imprisonment with a non-parole period of seven years’ imprisonment.

5. Mr Cashion appeals, inter alia, on the ground that the Judge erred in applying the wrong maximum penalty in respect to counts eight and nine.  The Judge proceeded on the basis that the maximum penalty on all three counts was 10 years’ imprisonment.  The maximum penalty for the offence of unlawful sexual intercourse was seven years imprisonment until 15 May 2006 when it was increased to 10 years.  It follows that the maximum penalty on counts eight and nine was seven years imprisonment.  The Director of Public Prosecutions accepts that that error vitiates the exercise of the sentencing discretion and it is, therefore, unnecessary to consider the other grounds.  It therefore falls to this Court to determine the appropriate sentence.

   The offending

6. When C commenced living with M and Darren Cashion they resided at Woodville Gardens.  Over the ensuing years, they moved house on a number of occasions, living at Ethelton, Seaton and then Beverley.  The appellant was a frequent visitor to those households and slept there several nights a week.  Alcohol and drugs were regularly consumed by the appellant, Darren Cashion and C.

7. The sexual offences against C involved a course of conduct which extended over a number of years. The offending was initiated by Darren Cashion when C was 13 years of age and living at Woodville Gardens. Darren Cashion would cause C to engage in sexual acts with him on a daily basis.

8. The appellant began sexually abusing C once they moved to the house at Ethelton. It commenced following an occasion when the appellant discovered C engaged in an act of fellatio on Darren Cashion in the backyard of the property. Darren asked the appellant not to tell anyone what he had seen and in exchange he would permit the appellant to do the same thing. That evening the appellant came into C’s bedroom after M had gone to bed and engaged in an act of penile-vaginal intercourse. Following the initial act by the appellant, the appellant and Darren Cashion would sexually assault C on an almost daily basis. Darren would normally go first and once finished would go into the lounge room and tell the appellant to go in to C’s bedroom. The person in the lounge room would act as a look out for the person in the bedroom with C. When C refused to engage in sexual acts with the appellant or Darren Cashion they became violent and would physically and verbally abuse her.

9. The sexual offending against C continued on a routine basis at the Seaton and Beverley addresses. The appellant became possessive and jealous of C, wanting to always be near her and away from other males. M was aware that the appellant was having sex with C. C felt that she was being blamed for what was occurring. She was subjected to continued physical abuse and threats of violence.

10. C fell pregnant to the appellant in 2007 but at the time she did not know whether the father of her child was Darren Cashion or the appellant.  C gave birth to her child in November 2007 when she was aged 16 years. It was not until C was living in a home for young single mothers after the baby was born that she complained of this abuse.

    Personal circumstances

11. The appellant was born in Hobart in 1962 and is now aged 51 years. His parents separated when he was around nine years old. He initially went to live with his mother where he experienced ongoing conflict, and then later lived with his father where he had considerable problems with his stepmother. Both of his parents re-married. He has not spoken with his mother in several years. He enjoyed a good relationship with his father until his death in 1996. He has a number of siblings and step-siblings but does not have a close relationship with them.

12. The appellant is single, having previously had one significant relationship which lasted for 16 years. He had one son, Darren, from the relationship. The relationship ended as a consequence of the appellant’s addiction to methylamphetamine. He had a good relationship with his son, Darren, who had also been his carer. Prior to his imprisonment, he lived with Darren and his three granddaughters.

13. The appellant completed his education to Year 8 level. He did not enjoy his schooling and had few friends. He performed below average academically and suffered behavioural problems, culminating in his expulsion at the age of 15 years for striking the headmaster.

14. He has worked in a number of labour intensive jobs. He injured his back in 1989 while loading trucks and thereafter received a single parent pension, followed later by a disability pension.

15. The appellant began consuming alcohol at the age of 14 years. At the age of 17 he began using methylamphetamine and cannabis. He was a heavy user of the substances. He stopped using methylamphetamine in 2004 when his granddaughter was born. He continued abusing alcohol up until he was imprisoned for the current offending. He also used Xanax and Valium, and was addicted to other prescription medications for periods of time.

16. He was first convicted of a criminal offence when he was 16 years old and has convictions for dishonesty, violence, drug and vehicle offences. He has no prior convictions for sexual offences.

17. The appellant was assessed by a psychologist, Dr White. Dr White reports that the appellant’s problem solving skills are extremely limited and equivalent to those of an average five and a half year old child.   The appellant’s verbal skills are significantly greater than his non-verbal skills which may explain why he has been able to work as a hotel porter, storeman, and tiler despite Dr White’s surprisingly low assessment of his problem solving skills.  The appellant reported to Dr White that he was sexually abused by a friend’s uncle when he was seven or eight years of age and that he had attempted suicide on three occasions.

18. In Dr White’s opinion the appellant is emotionally unstable with traits of anxiety and depression, and he suffers from neurocognitive and drug and alcohol disorders. Dr White concludes that “the combination of [the appellant’s] impaired cognitive functioning and his distorted sexual boundaries were likely contributing factors to his offending behaviour.”  As the Judge observed, those factors do not alone explain offences as grossly serious as these.  Dr White’s assessment may have been compromised by the limited information he was given about the offending.  Dr White did not refer to C’s pregnancy nor did he appear to challenge the appellant’s disturbing attempt to shift responsibility for his offending onto C by referring to her “flirtatious” behaviour.  The Judge was right not to give the report much weight.  Other than relating the results of the psychological tests, it served no useful purpose.

19. Whilst remanded in custody awaiting sentence, the appellant was badly beaten by other prisoners in retribution for his abuse of C.  His counsel told the Judge that the appellant took the view that he deserved the beating he had received. 

20. The sentencing Judge described the appellant’s offending as “depravity and corruption of a high order”.  I would adopt that description.

21. I also agree with the Judge that “this is one of the most serious cases of sexual exploitation of an older child” that the Courts have encountered.  The Judge correctly summarised the objective basis on which the appellant was to be sentenced as follows:

    You are only to be punished for the three counts before the court, but the context in which these three counts occurred is one of prolonged depravity and exploitation of a young girl by a mature middle-aged man. The age difference, the power imbalance and the depravity involved are at a very serious level.

22. Darren Cashion was sentenced to 12 years imprisonment.

    Disposition of the appeal

23. Even though it is accepted that the sentence is affected by error, if this Court takes the view that no lesser sentence should have been passed, it must dismiss the appeal.[2]

    [2]    See Criminal Law Consolidation Act 1935 (SA), ss 353(4)(b) and s 353(5).

24. The prosecutor submitted that a head sentence of 11 years with a non‑parole period of seven years is appropriate, even having regard to the lesser maximum applicable to counts eight and nine and having regard to the following:

    (a)The seriousness of the offending:

    (i)     The victim was particularly vulnerable, as she was being sexually abused by the appellant’s son.

    (ii)    Instead of helping her, the appellant sexually abused her too.

    (iii)   The abuse was protracted.

    (iv)   The nature of the sexual abuse was that the appellant and his son had sex with her, one after the other, most nights. 

    (v)    The appellant treated the victim as his ‘sexual plaything’.

    (vi)   The appellant would, on occasion, threaten her, beat her, and supply her with drugs and alcohol.

    (vii)  There was a large disparity in their ages.

    (viii) The victim fell pregnant, and gave birth to their child, when she was 16 years old.

    (b)The significant impact of the offending on the victim.

    (c)The importance of deterrence.

    (d)The limited contrition and remorse of the appellant.

    (e)The timing of the guilty pleas and the strength of the prosecution case.

    (f)The sentencing standards for this type of offending.

25. 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

26. I would dismiss the appeal.

27. GRAY J:     I agree that the appeal should be dismissed.  I do not wish to add to the reasons of the Chief Justice.

28. VANSTONE J:     I agree that the appeal should be dismissed and with the reasons the Chief Justice has prepared.