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Ashleigh Chapman v The King

Ashleigh Chapman v The King

Case [2024] VSCA 205 17 September 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0107

ASHLEIGH CHAPMAN	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2024
DATE OF JUDGMENT:	17 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 205
JUDGMENT APPEALED FROM:	[2021] VCC 1259 (Judge Smallwood)

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CRIMINAL LAW – Appeal – Sentence – Intentionally cause injury – Rape – Applicant and co‑offender acted in company – Applicant inflicted multiple cuts to victim’s leg using box‑cutter – Applicant digitally penetrated victim – Applicant went to trial and sentenced to total effective sentence of 8 years and 6 months’ imprisonment – Co‑offender pleaded guilty and sentenced to 606 days’ imprisonment and 12 month community correction order – Crown conceded disparity between sentences was such that objective observer would not regard equal justice as having been done – Applicant re‑sentenced to total effective sentence of 6 years’ imprisonment.

Green v The Queen (2011) 244 CLR 462; Hafner v The Queen [2012] VSCA 190; Kellway (a pseudonym) v The King [2023] VSCA 109; Postiglione v The Queen (1997) 189 CLR 295; Wong v The Queen (2001) 207 CLR 584.

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Counsel
Applicant:		Mr T Marsh
Respondent:		Mr D Glynn
Solicitors
Applicant:	Marshall Jovanovska Ralph
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA

ORR JA:

The applicant, Ashleigh Chapman, was found guilty by a jury on one charge of intentionally cause injury and one charge of rape. On 31 August 2021, she was sentenced as follows:[1]
[1]R v Chapman [2021] VCC 1259 (‘Reasons’).

Charge on indictment	Offence	Maximum penalty	Sentence	Cumulation
1	Intentionally cause injury[2]	10 years	3 years	1 year and 6 months
2	Rape[3]	25 years	7 years	Base
Total effective sentence:		8 years and 6 months’ imprisonment
Non-parole period:		6 years
Pre-sentence detention declared:		709 days

[2]Contrary to s 18 of the Crimes Act 1958.

[3]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

She now seeks leave to appeal her sentence.[4] The sole ground of appeal concerns parity with the sentence imposed on her co‑offender for the same offences. Her co‑offender pleaded guilty and was sentenced by Judge Gaynor on 28 October 2020 as follows:
[4]The application for leave was filed almost two years out of time. An application for an extension of time was not opposed, on the basis that the delay was no fault of the applicant. On 18 September 2023, the applicant was granted the extension of time.

Charge on indictment	Offence	Maximum penalty	Sentence	Cumulation
1	Intentionally cause injury	10 years	12 month community correction order[5]	-
2	Rape	25 years	606 days[6]	-
Total effective sentence:		1 year, 7 months and 26 days’ imprisonment
Non-parole period:		Not applicable
Pre-sentence detention declared:		1 year, 7 months and 26 days
Section 6AAA statement:		4 years’ imprisonment with a non-parole period of 2 years and 6 months

[5]With drug and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ashleigh Chapman v The King

Details

AGLC: Ashleigh Chapman v The King [2024] VSCA 205
Case: [2024] VSCA 205
Decision Date: 17 September 2024

CaseChat Overview and Summary

In the case of Ashleigh Chapman v The King, the applicant, Ashleigh Chapman, appealed against the sentence imposed upon him by the County Court of Victoria. The applicant, along with a co-offender, committed a violent crime against a victim, involving multiple acts of violence and sexual assault. Following a trial, Chapman was sentenced to a total effective term of imprisonment of 8 years and 6 months, whereas his co-offender, who had pleaded guilty, received a significantly lesser sentence of 606 days’ imprisonment and a 12-month community correction order. The Crown conceded that the disparity between the sentences was such that an objective observer would not regard equal justice as having been done.

The key legal issue before the Court was whether the disparity in sentences between the applicant and his co-offender warranted a re-sentencing of the applicant. The Court was required to consider whether the original sentence imposed on the applicant was manifestly inadequate, and if so, to re-sentence the applicant to a term of imprisonment that would address the disparity and ensure that equal justice was achieved. The Court also needed to consider the principles of parity and proportionality in sentencing, as well as the relevant case law on the matter.

The Court determined that the disparity in sentences between the applicant and his co-offender was indeed such that an objective observer would not regard equal justice as having been done. The Court noted that while the applicant’s culpability was significant, the co-offender’s lesser sentence did not adequately reflect the difference in their respective roles and contributions to the crime. The Court considered the relevant case law, including Green v The Queen, Hafner v The Queen, Kellway (a pseudonym) v The King, Postiglione v The Queen, and Wong v The Queen, and concluded that a re-sentencing of the applicant was necessary. The Court re-sentenced the applicant to a total effective term of imprisonment of 6 years, thereby addressing the disparity and achieving a more proportionate sentence.

The Court ordered that the applicant’s sentence be reduced to a total effective term of imprisonment of 6 years, to be served from the date of the original sentence. The Court also noted that the applicant had already served a significant portion of his original sentence, and that this should be taken into account in any future parole considerations.

Orders