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Court of Criminal Appeal 24 July 2026

Chapman v R

[2026] NSWCCA 113

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Chapman v R [2026] NSWCCA 113
Court: Court of Criminal Appeal
Date: 24 July 2026
Judge(s): Price AJA at [1]; Cavanagh J at [42]; Richardson J at [46]

Background

The applicant pleaded guilty in the District Court at Newcastle to two offences: sexual intercourse without consent (contrary to s 61I of the Crimes Act 1900 (NSW)), committed sometime between 2012 and 2013, and sexual touching without consent (contrary to s 61KC), committed in early 2019. Two further offences of recording intimate images without consent were taken into account on a Form 1.

The sentencing judge imposed an aggregate term of 3 years and 6 months imprisonment, with a non-parole period of 2 years and 3 months, after applying a 25% discount for the utilitarian value of early guilty pleas and finding special circumstances based on the applicant's mental health, first experience in prison, and the need for a period of supervised parole.

The core dispute on appeal concerned the principal offence. The applicant contended that when sexual intercourse commenced he held an honest but mistaken belief that the victim was awake and consenting, and that he only realised she was asleep shortly before ejaculation. The sentencing judge rejected that account and found, beyond reasonable doubt, that the applicant had actual knowledge that the victim was asleep from the commencement of the intercourse.

  • Whether it was reasonably open to the sentencing judge to find beyond reasonable doubt that the applicant had actual knowledge the victim was asleep at the commencement of the sexual intercourse, given the agreed facts and the rejection of the applicant's out-of-court statements
  • Whether the aggregate sentence was manifestly excessive (this ground was conceded by the applicant to be contingent on success on the first ground)

Decision

Ground 1: Finding of actual knowledge

The Court identified several features of the agreed facts as particularly significant. The victim had gone to bed wearing a singlet top and underpants. When she was woken by the applicant, she found her underpants had been removed and her top had been pulled up, exposing her breasts, and ejaculate was present on her thighs. The Court reasoned that the only reasonable inference available from those facts was that the applicant had removed her underpants and pulled up her top before commencing intercourse.

The Court held that there was no reasonable possibility that the applicant would have been unaware the victim was asleep while he removed her clothing in that manner. Taken together with the agreed fact that the victim was not using contraception (of which the applicant was presumably aware given the nature of their relationship), those circumstances made it reasonably open to the sentencing judge to find beyond reasonable doubt that the applicant had actual knowledge of the victim's state from the outset.

The applicant had not given evidence at the sentencing hearing, relying instead on his out-of-court statements, which the sentencing judge rejected. Cavanagh J noted that the applicable test on appeal is whether the challenged finding was reasonably open to the sentencing judge. Having rejected the out-of-court statements, the sentencing judge was still required to be satisfied beyond reasonable doubt. The Court found that the evidence met that standard and that no House v The King error was established.

Ground 2: Manifest excess

The applicant conceded at the outset that Ground 2 could not succeed independently of Ground 1. Because Ground 1 failed, the Court found no basis for separately examining whether the sentence was manifestly excessive, and Ground 2 was dismissed accordingly.

Orders Made

  • Time for leave to appeal extended
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where an applicant at a sentencing hearing relies solely on out-of-court statements rather than giving evidence, and the sentencing judge rejects those statements, the applicable appellate test remains whether the challenged factual finding was reasonably open to the sentencing judge on the evidence before the court.
  • A sentencing court may draw inferences beyond reasonable doubt from agreed facts alone, without the need for direct evidence of an accused's state of mind, where those facts permit only one reasonable inference.
  • Physical circumstances preceding an offence, such as the removal of clothing from a sleeping person, can constitute a sufficient evidentiary basis to support a finding of actual knowledge that a victim was not consenting from the commencement of the offending conduct.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where an applicant expressly concedes that a manifest excess ground is contingent on success on a separate factual ground, the manifest excess ground cannot be independently considered if the factual ground fails.
  • No error of the type described in House v The King (1936) 55 CLR 499 will be established simply because an applicant advances a competing interpretation of agreed facts, where the sentencing judge's inference was reasonably available on those facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I , 61KC , 91P
- Criminal Appeal Act 1912 (NSW), ss 5, 10
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) , r 3.5

Cases
- Fisher v R [2021] NSWCCA 91
- Fisher v R [2026] NSWCCA 27
- Hancock v R [2025] NSWCCA 213
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54