The Queen v David John Cashin
[2016] ACTSC 351
•5 December 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v David John Cashin |
Citation: | [2016] ACTSC 351 |
Hearing Dates: | 19-23 September 2016, 7 November 2016 |
DecisionDate: | 5 December 2016 |
Before: | Rares J |
Decision: | See [54]-[59] |
Legislation Cited: | Crimes Act 1900 (ACT) s 61(2) Crimes Act 1914 (Cth) ss 16A, 17A Crimes (Sentencing) Act 2005 (ACT) Criminal Code (Cth) ss 474.27(1), 474.27A(1) |
Cases Cited: | R v Asplund (2010) 216 A Crim R 48 R v Pham (2015) 325 ALR 400 |
Parties: | The Queen (Crown) David John Cashin (Offender) |
Representation: | Counsel Ms R Christiansen (Crown) Mr J Lawton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird & Co (Offender) | |
File Numbers: | SCC 7 of 2016; SCC 42 of 2016 |
Publication Restriction: | Note that on 19 September 2016, the Court ordered that: No report of these proceedings disclose the name or identity of the victim or her mother so as to enable either of them to be identified. |
RARES J:
On 23 September 2016, at the conclusion of the five day trial, the jury returned verdicts of guilty against the offender on six of the thirteen counts on the indictment. In addition, the offender pleaded guilty on the first morning of the trial, 19 September 2016, to count 12. The jury also acquitted the offender of the six remaining counts.
The guilty verdicts and plea were on two counts, one in 2013, the second in 2014, of committing an act of indecency on the victim who was under the age of 16, contrary to s 61(2) of the Crimes Act 1900 (ACT) (counts 1 and 2), four counts of using a carriage service to transmit an indecent communication to the victim who was under the age of 16, contrary to s 474.27A(1) of the Criminal Code (in the Schedule to the Criminal Code Act 1995 (Cth)) (counts 9 to 12) and one count of using a carriage service to “groom” the victim who was under the age of 16 contrary to s 474.27(1) of the Code (count 13).
The circumstances of the offences
The offender was aged between 58 and 60 at the time of his offending and his victim was a young girl aged between 11 and 13. The offender was the husband of the victim’s godmother who was a close personal friend and business partner of the victim’s (foster) mother. The mother had become the foster carer for the victim when she was about seven years old. The victim’s mother had established a group of friends, including the offender and his wife, to co-operate with the mother for the purposes of providing a circle of adults who could provide the victim with guidance and support as she was growing up. The offender was aware that the victim had a troubled history and was in need of emotional support. He and his wife became close friends of the victim and her mother.
The offender came to act as the victim’s dance partner during ballroom dancing lessons which she enjoyed. She spent periods of time staying at the home of the offender and his wife while her mother was engaged in interstate travel for her work. The offender and his wife also helped the mother by taking the victim to school or supervising her after school while her mother was working. The victim stayed overnight from time to time at their home. The occasions on which the offender committed counts 1 and 2 were ones on which the victim was staying at his home in circumstances where he had been entrusted with her care by her mother and his wife.
Before and during the period of all of the offences, the offender was in a relationship of trust with the victim and her mother. At all of those times the victim was under the age of 16.
Count 1
The first offence occurred at some point in 2013 when the victim was 11 or 12 years of age. She was staying at the home of the offender and his wife before a dance competition. The offender’s wife had gone out and the victim was getting ready to go to bed. As she went to have a shower, the offender came up behind her and touched her breasts. There was no evidence as to whether she was dressed or undressed at that time and I have assumed, for the purposes of imposing sentence, that she then had clothing covering her breasts. The offender said to her: “I’ll come dry you.” The victim replied that she was not a baby and she could dry herself. The offender replied that she was his “baby”. The victim waited until the offender’s wife returned home before she had a shower.
I am satisfied beyond reasonable doubt that the offender committed the offence of committing an act of indecency on a person under the age of 16 years having taken the opportunity presented by his wife being absent and he being alone with the victim. The offence demonstrated that he had a sexual interest in the victim and he sought to use his opportunity to be alone with her to pursue his sexual gratification.
Count 2
The second offence, also being an act of indecency, occurred in 2014 at some time prior to late October in that year, when the offender travelled overseas. At the time of this offence the victim was aged between 12 and 13. She was again alone with the offender at his house. They were sitting on the couch in the lounge room watching television. At some point the victim sat down on the floor with the dog. The offender went over and sat next to her. He placed his hand between her legs. The victim felt uncomfortable, stood up and left the room. As she did so, the offender squeezed her bottom. A short time later the victim returned to the couch and continued watching television. The offender again put his hand between her legs. I again assume that the victim was clothed and that the offender touched her through her clothing. I find beyond reasonable doubt that the offender engaged in this conduct in a premeditated way.
Each of the offences in counts 1 and 2 occurred in circumstances where the offender was in a position of trust having the care of the victim. The offender was an adult whom the victim’s mother had held out to the victim was a person that she, the victim, should trust as a close family friend.
Counts 9-13
The offences in counts 9-13 should be approached as having occurred as part of a single course of conduct in the period between 23 and 27 January 2015 while the offender was in Canberra and the victim on holiday in Queensland. He was then 60 years of age and she was 13. They engaged in intensive and protracted messaging on Facebook. Most of that messaging did not involve any sexual or indecent content.
At the time of this offending the offender knew that the victim’s mother did not wish the victim to use social media accounts, particularly without the mother’s knowledge. The offender previously had told the victim’s mother that he disagreed with that policy. The victim and the offender engaged in most of the offending messaging very late at night. Each of counts 9 to 12 concerned the offender, who was over the age of 18, using a carriage service, namely the internet, to transmit to a person under 16 a communication on Facebook that contained material that was indecent. Count 13 concerned the offender using the internet to transmit a communication to “groom” the victim, namely with the intention of making it easier to procure the victim to engage in sexual activity with the offender.
Count 9
On 23 January 2015, the offender and the victim exchanged 241 messages between 5.38 pm and 11.57 pm, using Australian Eastern daylight saving time. The victim was in Queensland on Australian Eastern standard time (which was one hour behind Canberra). The messages in this exchange included the offender writing: “There are allot [sic] of good things to bite especially a gentle bite” and, in response to her query “Like”, he wrote “your rear end or front end or higher”. He also asked the victim: “How do you feel when we play.”
Count 10
Later on the same night, but from midnight until 1.24 am on 24 January 2015, the offender and victim sent each other 86 messages on Facebook. He sent the victim a cartoon image of a girl in a bath. In response the victim sent him a cartoon image of a cat in a bath. The offender messaged in response: “Can I jump in to.” She replied: “You bet u can” and he responded, “I could scrub your back.” The victim asked if he had done that with his wife, to which he replied: “Yep I washed other parts as well.” He also wrote: “It’s nice to have a shower together as well” and he asked the victim if she would like to.
Count 11
Later on 24 January 2015, between 10.05 am and 11:13 pm, the offender and the victim engaged in a further exchange of 198 communications. During those messages at around 5.30 pm, the victim sent the offender a photo of herself showing her cleavage while it was in clothing, to which he responded: “Yum, very nice”. I am satisfied beyond reasonable doubt that he sent that message to encourage the victim to send him more revealing and, for him, sexually provocative messages and photographs. The remark, “Yum very nice”, was an obviously indecent response by a 60 year old man, in a position of trust, to, the 13 year old girl to whom he sent it. He intended to elicit from this vulnerable girl more explicit material to gratify his sexual interest and he succeeded. No doubt encouraged by the offender’s remark, she subsequently sent him a photograph of her naked breasts to which he responded: “Yum thanks that will get me going”.
The offender told the jury that he now acknowledged that his conduct in counts 9 to 11 was “inappropriate”, but he denied that he knew that his communications were indecent. The jury rejected that attempt of the offender to exculpate himself.
Summary – Counts 9-11
I am satisfied beyond reasonable doubt that the offender engaged in the conduct in each of counts 9 to 11 knowing that his communications were indecent and that the offender sent those messages to the victim to enable him to gratify his sexual interest in the victim. The message exchanges occurred in secret and in circumstances when he knew that not only was he in a position of trust in relation to the victim, but that he was encouraging her to communicate with him material that he found sexually gratifying. I am satisfied beyond reasonable doubt that for a 60 year old man to conduct exchanges on Facebook with a 13 year old girl that included his responses, such as that to her photograph of her naked breasts, stating “Yum thanks that will get me going”, was self-evidently indecent behaviour.
Count 12
Later on 24 January 2015 from 11:41 pm to 12:54 am on 25 January 2015, the offender and the victim exchanged 85 messages on Facebook during which he asked her what she was wearing and said that he was feeling a bit “tingly”. After some encouraging banter with the offender, the victim asked him to send her a picture. He sent a picture of his nipple and said to her: “just need you to suck it”. No doubt further encouraged by this, she exchanged more messages with the offender in which they pretended that they were lying next to each other. During this part of the exchanges the offender messaged the victim that he would “lick all of you yum ... all over”.
When he entered his pleas before the jury, the offender pleaded guilty to this count. The Crown case was overwhelming that those communications by the offender in count 12 with the 13 year old victim were indecent.
Count 13
Before they began exchanging a total of 263 messages between 9.02 pm on 26 January 2015 and 1.24 am on 27 January 2015, the offender was aware that the victim was due to return to Canberra later on 27 January 2015 and he had been asked by her mother to collect her from the airport. During these communications the offender asked the victim if she had her pyjamas on because he liked “to think nice things”. The victim sent him a photograph of her cleavage to which he replied: “Wow nice puppies”. She asked him how his were and he replied: “Very tight … thinking of you”. The offender then sent her a photo of his nipple and the victim replied with a photo of her naked breasts. The offender responded: “Double yum”.
I am satisfied beyond reasonable doubt, as was the jury, that the offender intended that this late night exchange would encourage his victim to engage in sexual activity with him on her return to Canberra when he knew that he was to collect her from the airport later that day. The offender’s conduct on this occasion was predatory and disgraceful. It was a callous, selfish, exploitation of a vulnerable young girl. The offender engaged in this conduct to gratify his sexual interest quite heedless of the real potential of his conduct to harm the victim. He deliberately exploited her curiosity in exploring her own developing sexuality, as a young adolescent, to whom he stood in a quasi‑parental position of trust. In addition, the offender told the victim to delete their communications including those in counts 9 to 12, that she had sent or received on a device borrowed from her host in Queensland.
The circumstances in which counts 9 to 13 occurred
The exchanges became more sexually explicit and indecent between the occasions on which each of counts 9 to 13 occurred. With the exception of count 11, they occurred late at night, in contrast to other communications of an innocent character that occurred over the same period, including during the day and early in the night.
The offender gave evidence that he did not respond to the victim, in reply to any of her sexually suggestive messages, with advice that, for example, she should not have sent such communications to him because it was not appropriate. He said that she reacted badly to negative comments, that he wanted to remain positive with her but that he intended to explain to her later when they met that she should not be sending such messages.
Counsel for the offender argued that the victim sent indecent communications to the offender without him soliciting them. I reject that argument. The offender’s responses, such as inviting the victim to say if she would like to have a shower together, as in count 10, and such as “yum”, establish beyond reasonable doubt, that he intended to solicit from the victim more of such messaging, as in fact occurred.
At no time during the four days did the offender, as the 60 year old adult, tell the 13 year old with whom he was communicating that she should not do what she was doing. He had a mentoring, if not, guardian-like relationship with her. I am satisfied beyond reasonable doubt, that the offender wanted the victim to act as she did and that his evidence that he intended to make a later exculpatory explanation to the victim was false. I find that the offender wanted to encourage, by his positive responses, the very kind of indecent, sexually charged, responses that the victim sent him to feed his desire for sexual gratification. His conduct was calculated to draw his victim into further similar indecent communication.
The objective evidence of the offender’s guilt on each of counts 9 to 13 was overwhelming, including count 12 to which the offender pleaded guilty. Yet, he has shown little to no insight as to the indecency of his communications or the capacity of his conduct to harm the victim and to distort her understanding of the kind of healthy, decent interaction that a child of her age should have with a man of his age and in his position in relation to her.
Complaint
Late on the night of 27 June 2015, the victim’s mother discovered that the victim had a Facebook account on her laptop and had engaged in communications with the offender. She spoke to the victim the next day and, as a result, the victim made a complaint about the offender’s conduct towards her.
The police first interviewed the victim on 2 July 2015. They executed a search warrant at the offender’s home on 14 October 2015. The offender denied to the police both being sexually attracted to the victim or having engaged in sexual activity with her.
Consideration – general
There is no suggestion in the evidence that the offender engaged in any indecent or other inappropriate activity with the victim after 1.24 am on 27 January 2015, including later that day immediately upon her return from Queensland, when he collected her from the airport.
After being charged, the offender was on bail until I remanded him in custody following the jury’s return of six guilty verdicts late on 23 September 2015.
In considering the matters that I must take into account in sentencing I have had regard to the nature and circumstances of each of your offences that I have described.
I have had regard to the nine minor convictions and fines for traffic offences that occurred over 35 years ago. I am satisfied that those traffic matters have no relevance to assessing the appropriate sentences for the offences that I am now considering. In my opinion, the offender is entitled to be considered as a person who has no prior history of criminal conduct and as one who lived the life of a responsible citizen. As your referees have suggested, but for the present offending, you would be regarded as a person of otherwise good character. However, sexually predatory offences of the kind in each of the counts for which I am passing sentence are very often committed by persons such as you. That is because the outward appearance of good character gives such persons the opportunity to be trusted to be with a child or young adolescent.
You have taken an active and loving concern in providing for the welfare of your 34 year old son who has a disability. You and your wife have cared for him and provided him with separate accommodation at your home over the years. Any period of imprisonment will throw an added responsibility and burden, first, on your wife in undertaking such care for your son and, secondly, on your son because of the separation from you that he will experience. Taking such care of your adult child reflects well on you. Your imprisonment while on remand and any custodial sentence that I may impose on you will increase your wife’s burden of care for your son and the burden on him.
I have also had regard to your recent diagnosis, in late 2014, and treatment of your prostate cancer and the fact that it is now in remission. In addition, I have taken into account that you suffered domestic violence from your father when you were a child.
Consideration – Territory offences
The offences in counts 1 and 2 occurred on two quite separate occasions. I have assessed the sentence appropriate for each of those counts in having regard to the totality of all of the sentences that I must pass on you today.
As I have explained in describing your offending, you were in a position of trust in relation to the victim. You knew that she was a young girl with a troubled history and that her mother had chosen you, the husband of her godmother, as a person to whom the victim could look for care, love, role modelling and guidance. I consider your violations of the victim in the offending on counts 1 and 2, for which the jury convicted you, were gross breaches of that trust.
I have had regard to the victim’s impact statement and also that of her mother, so far as the mother’s statement reveals the impacts of your offending on her daughter. However, I have taken into account that what the victim and her mother said there arose in the context that they believed that the impact of the offences of which you have been found guilty, was part of the greater impact that they felt, based on their evidence in the trial, in respect also of those six offences on which the jury acquitted you. Thus, the overall substantial impact that they felt may not be an impact for which you are entirely responsible.
The legislature has prescribed a maximum penalty of 10 years imprisonment for the offence of committing an act of indecency on a person under the age of 16. It is an offence that involves a violation of a child’s or young adolescent’s entitlement to trust persons in your position. Often, as is in this case, it is an offence that a person, such as you, has the opportunity to commit because the person is in a special position in relation to the child victim and she feels that she cannot report it. Perpetrators prey on that vulnerability of their child victims.
Experience has shown that the impact on the victim of sexual misconduct of the kind in the two acts of indecency that you committed, while the victim stayed at your home, can last a lifetime and can damage her profoundly.
The commission of an act of indecency on a young person is very likely to have a lifelong detrimental impact on her. It violates her right to bodily integrity. However, it is also likely to harm her emotionally and psychologically. That is even more likely where, as here, you knew that the victim had a troubled background and you were a person whom she was entitled to trust as having her best interests at heart.
The damage done to a victim by offences of the kind you committed is not confined to the physical act of indecency or her immediate reaction to reading a message received on social media or engaging in messaging exchanges. The damage is very often life long, particularly where the offending conduct towards the victim is repeated, as it was in your case. That is why the legislature and the Courts have required that perpetrators be punished appropriately severely. It is important to deter others from committing crimes of this nature.
I have taken into consideration that your offending demonstrated that you sought and obtained sexual gratification from each offence of which you are guilty. The offending showed that you had a sexual interest in the victim that continued over the approximate two year period of the offending.
You have shown no remorse for the offences in counts 1 and 2. Consistent with your evidence to the jury, you maintain that the victim made up her allegations of those two occasions that the jury found proved beyond reasonable doubt.
I have had regard to the impact that a full time custodial sentence will have on you. The period you have spent on remand since the jury returned its guilty verdicts on 23 September 2016 is the first time that you have ever been in custody. Prison conditions are likely to be difficult for you at your age, your medical condition and in light of the separation it creates between you, your wife and your son. I have also considered your prospects of rehabilitation.
Community Corrections of ACT Corrective Services assessed you as having moderate to low risk of sexual re-offending. However, Community Corrections was not aware of your guilty plea to count 12 or of your conviction on count 13. Community Corrections said that the offender “continue[d] to minimise his actions by claiming he was providing support to a young person in need”. I consider that your lack of insight into your offending, including your explanation of it to Community Corrections gives me no confidence that you will not re‑offend.
I am satisfied that, having considered all possible sentences available for each of counts 1 and 2 under the Crimes (Sentencing) Act 2005 (ACT) there is no alternative appropriate sentence than full time imprisonment for each of those offences.
Consideration – Commonwealth offences
The maximum penalty on each of counts 9 to 12 is seven years imprisonment and on count 13 is 12 years imprisonment. In addition to the matters that I have already mentioned, I have had regard to your late plea of guilty to count 12. While such a plea is a recognition of your wrongdoing, the Crown case was overwhelming and your plea was made only on the first morning of your trial. Nonetheless, I consider it appropriate to reflect the fact that you did plead guilty to count 12 in the sentence I will impose for that count.
Your lack of insight and contrition for your crimes in counts 9 to 11 and 13, involving your electronic communications with the victim, are troubling. I consider that the punishment I must impose should address the need to deter you, as well as others, from engaging in similar conduct in the future.
Such crimes, using social media, are hard to detect. They have the potential to do great harm to their victim, in particular, young people, including children entering adolescence, such as the victim here. The potential for harm was significant in your case. You knew that the victim was vulnerable, yet you exploited her trust and willingness to communicate with you for your own sexual gratification. The Parliament has provided significant penalties for the offences in counts 9 to 12 because it is important to punish a person who uses social media, like Facebook, to send indecent communications to persons under 16 years of age.
The more severe maximum penalty for the offence on count 13 reflects the Parliament’s recognition that that offence is even more serious. Communicating with a person, such as the victim here, who is under 16, with the intention of making it easier to procure her to engage in sexual activity with you, has the potential to cause greater damage to the victim.
The Courts have recognised that punishment for offences like those on counts 9 to 13 require sentences of appropriate severity. One important purpose of such sentences is to deter others from engaging in similar, hard to detect, crimes (R v Asplund (2010) 216 A Crim R 48 at 62 [49]-[51]). Your counsel submitted that sentencing statistics in this Territory indicated that Courts here have not imposed full time custodial sentences for such offences.
These offences are crimes against Commonwealth law. Courts in other jurisdictions have imposed substantial terms of full time imprisonment for these offences on persons in a similar position to you. The law requires me to have regard to other comparable cases and the guidance of appellate courts throughout the nation to promote consistency in determining the sentences that I impose on you (R v Pham (2015) 325 ALR 400 at 404-407 [23]-[29] per French CJ, Keane and Nettle JJ, 410-411 [46]‑[50] per Bell and Gageler JJ). That is what I have done.
In my opinion, your conduct in committing the offences on each of counts 9 to 13 demonstrated a high degree of criminality. This offending reflected a persistence in you seeking sexual gratification from the victim that your convictions on counts 1 and 2 in respect of your earlier conduct demonstrated.
I have had regard to all relevant matters under s 16A of the Crimes Act 1914 (Cth), in addition to those I have mentioned above and to the strong Crown case against you on counts 9 to 13. I am satisfied for the purposes of s 17A(1) of the Crimes Act 1914 (Cth) having considered all the possible alternatives, that no other sentence than full time imprisonment is appropriate to punish you for counts 9 to 13.
Sentences
I enter convictions for, and impose the following sentences in respect of, the Territory offences:
(a)an act of indecency in 2013 (count 1) – two years commencing as from 23 September 2016 (taking into account the time you have served on remand awaiting sentence);
(b)an act of indecency in 2014 (count 2) – two years and six months commencing on 23 December 2016.
That will mean that you will serve some of your sentence on count 2 concurrently with that for count 1. Overall your head sentence for the two Territory offences will expire on 23 June 2019. I set a non-parole period ending on 22 December 2017.
In my opinion, each of the Commonwealth offences formed a course of conduct leading to the offence in count 13. Therefore, I have considered that a considerable degree of concurrent imprisonment is appropriate, as is the need to take account of the existing Territory sentences.
I enter convictions for, and impose the following sentences in respect of, the Commonwealth offences:
(a)indecent communication (count 9) – 2 years commencing on 23 December 2017;
(b)indecent communication (count 10) – 2 years commencing on 23 January 2018;
(c)indecent communication (count 11) – 2 years commencing on 23 February 2018;
(d)indecent communication (count 152) – 1 year 9 months commencing on 23 June 2018;
(e)communicating with a person under the age of 16 with the intention of making it easier to procure that person to engage in sexual activity (count 13) – 3 years commencing on 23 August 2018.
That means that the head sentence will expire on 22 August 2021.
In all of the circumstances, I will fix a non-parole period for the Commonwealth offences of one year and three months, commencing on 23 December 2017. Therefore, the total time you must spend in prison from when you were remanded in custody before you are eligible for parole on 22 March 2019 will be two years and six months.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Rares. Associate: J Coles Date: 5 December 2016 |
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