Background
Ricky Joseph Chapman pleaded guilty in the District Court of New South Wales to sexual intercourse without consent and sexual touching without consent. Two offences of intentionally recording an intimate image without consent were also taken into account on a Form 1. The District Court imposed an aggregate sentence of three years and six months’ imprisonment, with a non-parole period of two years and three months.
The sexual-intercourse offence occurred while the complainant was asleep. Chapman accepted that she was asleep throughout the intercourse but maintained, through out-of-court statements to police and a psychologist, that he initially believed she was awake and consenting and realised only later that she was asleep. The sentencing judge rejected that account and found beyond reasonable doubt that Chapman knew from the outset that she was asleep. Chapman appealed that finding and alleged that the resulting sentence was unreasonable or plainly unjust.
The Court’s Holding
The Court extended time, granted leave to appeal, and dismissed the appeal. It held that the sentencing judge’s finding of actual knowledge was reasonably open on the agreed facts. The complainant had gone to bed wearing a singlet and underpants but awoke with her underpants removed and her top pulled up. Because she was asleep throughout, the only reasonable inference was that Chapman had moved and removed her clothing while she slept before commencing intercourse.
The Court also held that the sentencing judge was entitled to reject Chapman’s untested out-of-court accounts, particularly because he did not give evidence and the accounts contained inconsistencies and conflicted with the agreed facts. The evidence permitted a finding beyond reasonable doubt that Chapman knew the complainant was asleep and not consenting when intercourse began. No material factual mistake or other House v The King error was established. Because Chapman accepted that his manifest-excessiveness ground depended on success on the first ground, that ground also failed.
Key Takeaways
- On a sentence appeal, a challenged factual finding constitutes House v The King error only if the finding was not reasonably open and the error was material.
- A sentencing judge need not accept an offender’s self-serving out-of-court statements, particularly when they are disputed, untested by cross-examination, inconsistent, or contrary to agreed facts.
- Agreed circumstantial facts supported the finding beyond reasonable doubt that Chapman knew the complainant was asleep when he commenced intercourse.
Why It Matters
The decision illustrates the evidentiary risk of relying on disputed out-of-court assertions at sentencing without giving evidence. When an offender advances a mitigating factual account that the prosecution contests, the sentencing judge may reject it and draw contrary inferences from the agreed facts.
It also confirms that appellate review of sentencing facts asks whether the finding was reasonably open, not whether another inference was possible. A dependent manifest-excessiveness claim will not receive separate consideration when the predicate factual challenge fails.