David John Cashin(Appellant) v The Queen

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Burns,Mossop,Rangiah JJ
• Judgment Date: 24 April 2017
• Docket Number: File Number: ACTCA 54 of 2016
• Date: 24 April 2017

[2017] ACTCA 13

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Before:

Burns, Mossop and Rangiah JJ

File Number: ACTCA 54 of 2016

David John Cashin

(Appellant)

and

The Queen

(Respondent)

Representation:

Counsel

Mr J Lawton (Appellant)

Ms M Jones (Respondent)

Cases Cited:

Barbaro v The Queen ; Zirilli v The Queen [2014] HCA 2; 253 CLR 58

DPP (Cth) v FM [2013] VSCA 129 ; 45 VR 64

GW v The Queen [2015] ACTCA 56 ; 306 FLR 104

MacKenzie v The Queen [1996] HCA 35 ; 190 CLR 348

MFA v The Queen [2002] HCA 53 ; 213 CLR 606

Monfries v The Queen [2014] ACTCA 46 ; 245 A Crim R 80

O'Brien v The Queen [2015] ACTCA 47

R v Asplund [2010] NSWCCA 316 ; 216 A Crim R 48

R v Murray (1987) 11 NSWLR 12 ; 30 A Crim R 315

Zdravkovic v The Queen [2016] ACTCA 53

Legislation Cited:

Criminal Code Act 1995 (Cth) ss 474.26, 474.27, 474.27A

Crimes Act 1900 (ACT) s 61(2)

APPEAL AND NEW TRIAL — PRACTICE AND PROCEDURE — Appeal against conviction and sentence — where the jury delivered inconsistent verdicts — whether the verdicts are unsafe and unsatisfactory — where the sentences were accumulated — whether the sentences imposed were manifestly excessive.

Decision:

The appeal is dismissed.

THE COURT:

1 The appellant came to trial before Rares J and a jury on 19 September 2016. He faced an indictment containing 13 Counts. At the commencement of the trial he pleaded guilty to Count 12, namely the use of a carriage service to transmit an indecent communication.

2 On 23 September 2016, the jury returned a verdict of guilty on Counts 1, 2, 9, 10, 11 and 13. Verdicts of not guilty were returned on Counts 3, 4, 5, 6, 7 and 8.

3 On 5 December 2016, the appellant was sentenced in respect of the offences to which he had been found, or pleaded, guilty. He was sentenced as follows:

• (a) Count 1 (act of indecency with young person) – a period of imprisonment of 2 years to commence on 23 September 2016;

• (b) Count 2 (act of indecency with young person) – a period of imprisonment of 2 years and 6 months to commence on 23 December 2016;

• (c) Count 9 (use carriage service to transmit indecent communication to person under 16) – a period of imprisonment of 2 years commencing on 23 December 2017;

• (d) Count 10 (use carriage service to transmit indecent communication to person under 16) – a period of imprisonment of 2 years commencing on 23 January 2018;

• (e) Count 11 (use carriage service to transmit indecent communication to person under 16) – a period of imprisonment of 2 years commencing on 23 February 2018;

• (f) Count 12 (use carriage service to transmit indecent communication to person under 16) – a period of imprisonment of 1 year and 9 months commencing on 23 June 2018; and

• (g) Count 13 (use carriage service to groom person under 16) – a period of imprisonment of 3 years commencing on 23 August 2018.

4 Ultimately the effect of the sentences is a head sentence that will expire on 22 August 2021 and a non-parole period that expires on 22 March 2019.

5 The Notice of Appeal was filed on 14 October 2016. An Amended Notice was filed on 6 December 2016. The appeal attacks the verdicts in Counts 1, 2 and 13. In addition, the appellant says that the sentence imposed was manifestly excessive.

6 The complaint concerning Counts 1 and 2 is that the verdicts of guilty are inconsistent with the verdicts of not guilty on Counts 3 to 8. The verdict of guilty on Count 13 is said to be unsafe and unsatisfactory.

Background to the offences

7 The offences took place in 2013, 2014 and 2015. The appellant, a male, was then aged between 58 and 60 and the victim, a female, was aged between 11 and 13. The appellant was the husband of the victim's godmother who was, in turn, a close friend and business partner of the victim's mother. The mother was actually a foster mother who had assumed the care of the victim when she was about eight years of age. It was known to the appellant that the victim had a troubled childhood and he was part of a support group concerned with providing emotional support and guidance to the victim. The relationship was said to be close.

8 As His Honour noted in his sentencing remarks:

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.

9 A detailed description of the offences can be found in the sentencing remarks. The following is a summary:

Count 1: In 2013 the appellant approached the victim from behind as she was preparing to have a shower. He touched her breasts and offered to dry her. The offence was contrary to s 61(2) of the Crimes Act 1900 (ACT) (the Crimes Act).

Count 2: In 2014 the appellant was alone with the victim. They were sitting on a couch watching television. The appellant placed his hand between the victim's legs, he squeezed her buttocks and later placed his hand between her legs again. The offence was contrary to s 61(2) of the Crimes Act.

Count 9: This Count, together with Counts 10, 11, 12 and 13 occurred when the appellant was in Canberra and the victim was in Queensland. The offences took place through the medium of Facebook. Count 9 involved the suggestion of gently biting parts of the victim's body. The offence was contrary to s 474.27A of the Criminal Code Act 1995 (Cth) (the Criminal Code).

Count 10: This Count involved, again, subtle suggestions of intimacy between the appellant and the victim. The offence was contrary to s 474.27A of the Criminal Code.

Count 11: This Count concerned sexually provocative messages and photographs including, as his Honour found, the victim being encouraged to send to the appellant a photograph of her naked breasts. The offence was contrary to s 474.27A of the Criminal Code.

Count 12: Again on Facebook, the appellant made indecent suggestions to the victim including telling her that he would ‘lick all of you yum…all over.’ The offence was contrary to s 474.27A of the Criminal Code.

Count 13: During the exchange making up this Count, the appellant commented on the victim's breasts. He sent her a photo of his nipple and she responded with a photo of her naked breasts. He observed: ‘Double yum’. The offence was contrary to s 474.27(1) of the Criminal Code.

10 It is now necessary to set out the facts which were alleged to make up Counts 3 to 8. These facts are drawn from the Amended Case Statement. Count 3 involved the victim staying at the appellant's house during school holidays. It is alleged that the appellant and the victim were sitting on the couch and the appellant put his hand inside the victim's underpants and rubbed her genitalia. Count 4 then alleged that following the Count 3 incident, the appellant undressed the victim and himself and put her hand on his penis. A little later, but on the same day, it was alleged that the appellant removed his trousers and underwear and made the victim rub his penis. This conduct constitutes Count 5.

11 In Count 6, the appellant and the victim were back on the couch. The appellant allegedly removed his trousers and placed his penis in the victim's mouth.

12 Count 7 allegedly took place on a different day, but close in time to Counts 3 to 6. It was alleged that the appellant rubbed the victim's genitalia, firstly over her clothes and later with his hand beneath her clothes. It was alleged that he inserted two fingers into her genitalia. In Count 8, it was alleged that following the Count 7 incident, the appellant undressed the victim, opened her legs and licked her genitalia.

13 It is noted at this stage, firstly, that Count 1 occurred in 2013 and happened at the appellant's home. Count 2 occurred at the same location but in 2014. It was not on the same day as the allegations making up Counts 3 to 8. Secondly, Counts 3, 4, 5 and 6, also at the appellant's house, all took place on the same day over a relatively short space of time. Count 7, again at the same location, involved allegations on a separate day, including separate to Counts 1 and 2.

14 It is necessary to explain how the complainant came to reveal the alleged offences. I have taken the following summary of events from the submissions made by the respondent, the factual accuracy of which was not challenged by the appellant. The complainant, who was born in 2001, was the foster child of OO and had been in her care since the complainant was eight years old. OO was a sole parent. [Redacted for legal reasons.]

15 OO worked full time until May 2013. When she fostered the complainant, she established a number of supportive relationships to assist her to raise the complainant. The appellant and his wife were part of this support network. OO was required to travel on overnight trips with work until she ceased working in May 2013. When OO travelled for work, and on some other occasions, the complainant stayed with the appellant and his wife.

16 On Saturday 27 June 2015, as a result of a telephone call with her brother, OO took the complainant's laptop off her and discovered a number of messages between the complainant and the appellant that caused her concern. OO became suspicious that something may have been going on between the appellant, who was almost 60 years of age at that time, and the complainant. That afternoon OO raised the messages with the complainant. The complainant told OO that the appellant sent her messages which were inappropriate, and that he often asked the complainant to delete messages he sent. In this initial conversation between OO and the complainant, the complainant said that the appellant touched her breasts and had touched her between her legs.

17 The way in which this information came out of from...