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District Court 13 March 2025

R v Chapman

[2025] NSWDC 473

Sexual offencesDomestic & family violence
CRIME SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT SEXUAL TOUCHING

Citation: R v Chapman [2025] NSWDC 473
Court: District Court of New South Wales
Date: 13 March 2025
Judge: Bourke SC DCJ

Background

The offender, Ricky Chapman, was sentenced for two principal offences committed against his former partner during the course of their relationship. The relationship began around October 2011 and involved the couple living separately but spending regular time together, including overnight stays. They had two children together before the relationship ended in December 2018.

The first offence (sequence 1) occurred in either 2012 or 2013. The victim was asleep at the offender's home when the offender sexually interfered with her while she was unconscious. She woke to find her clothing disturbed and ejaculate on her body. She had given no consent, being asleep at the time.

The second principal offence (sequence 7) occurred in February 2019, during the victim's recovery from surgery. She woke to find the offender touching and spreading her buttocks while using his mobile phone to record her. Two further offences of recording intimate images without consent were taken into account on a Form 1 document (a procedure by which related offences are acknowledged in sentencing without being separately convicted). The offender also had a history of recording the victim on approximately seven additional non-consensual occasions, which the court noted for context but did not treat as aggravating the offences before it.

  • What sentence was appropriate for an offence of sexual intercourse without consent carrying a 14-year maximum and a seven-year standard non-parole period
  • What sentence was appropriate for an offence of sexual touching without consent carrying a five-year maximum
  • Whether special circumstances existed to justify departing from the standard ratio between head sentence and non-parole period
  • What aggregate sentence and non-parole period appropriately reflected totality principles given the two principal offences were separated by several years

Decision

Bourke SC DCJ applied a 25 per cent discount to the sentences for each offence, reflecting the offender's early guilty pleas and their utilitarian value to the justice system. The court assessed the offending as involving a serious breach of trust within an intimate relationship, noting in particular that the sequence 1 offence was committed against a sleeping victim.

The court found special circumstances warranting a departure from the standard non-parole period ratio. The basis for this finding included the offender's diagnosis of depression, his vulnerability in the prison environment, the fact this was his first period of imprisonment, and the need for adequate supervision during parole. Prospects of rehabilitation were described as reasonable and the risk of reoffending as fairly low.

Indicative sentences were set before the aggregate sentence was determined: three years six months (with a non-parole period of two years two months) for the sequence 1 offence, and 15 months for the sequence 7 offence including the Form 1 matters. The court concluded that, because the two principal offences were distinct criminal acts separated by several years, some degree of notional accumulation was warranted in arriving at the overall sentence.

Orders Made

  • The offender was convicted of both offences.
  • An aggregate head sentence of three years and nine months imprisonment was imposed, commencing 17 September 2024 and expiring 16 June 2028.
  • A non-parole period of two years and three months was set, making the offender eligible for parole on 16 December 2026.

Key Takeaways

  • The District Court treated an offence of sexual intercourse committed against a sleeping partner within an established relationship as a serious breach of trust, reflected in the sentence imposed despite the significant discount for an early guilty plea.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be supported by a combination of factors including first-time imprisonment, mental health diagnosis, prison vulnerability, and the need for meaningful post-release supervision.
  • Where two offences arise from distinct criminal acts separated by several years, some notional accumulation in an aggregate sentence is appropriate to reflect the full criminality of the conduct.
  • Evidence of additional non-consensual recordings beyond those charged was treated as relevant to demonstrate that the Form 1 offences were not isolated, but was not used as a separate aggravating factor.
  • Under the Form 1 procedure, uncharged offences acknowledged by the offender are taken into account in sentencing without attracting independent convictions or penalties, but they can inform the court's assessment of the overall pattern of conduct.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 3A and 5

Cases
- Attorney-General's Application (2002) NSWCCA 518
- DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194
- Fisher v R [2021] NSWCCA 91