Ashleigh Chapman v The King

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 mental health conditions.

[6]This comprised the time the co-offender had already served by way of pre-sentence detention.

The respondent conceded that the differences between the sentences imposed on the applicant and her co‑offender cannot be justified, and that this Court should re‑sentence the applicant. As we explain below, that concession was properly made.
We will therefore grant leave to appeal and allow the appeal. For the reasons given below, we will re‑sentence the applicant to 2 years and 6 months imprisonment on charge 1 (intentionally cause injury) and 5 years’ imprisonment for charge 2 (rape). The sentence on charge 2 will form the base sentence. We will direct that 12 months of the sentence imposed on charge 1 be served cumulatively upon the sentence imposed on charge 2, making a total effective sentence of 6 years’ imprisonment. We will also direct that the applicant be eligible for parole after serving 4 years’ imprisonment.
The sentence we will impose on the applicant should be understood as being of limited precedential value. That is because it is the result of appellate intervention to address a manifest disparity between the sentence imposed on the applicant and the extraordinarily lenient sentence imposed on her co‑offender. The respondent contended that, when viewed in isolation from the sentence imposed on her co‑offender, the applicant’s sentence was within range. The applicant did not contend to the contrary.

Circumstances of the offending

On 21 August 2018, the applicant was residing in a share house with her co‑offender, Ms Lin, and the victim, Isabelle.[7] The judge described the premises as ‘effectively [a] boarding house’. The applicant was 24 years old and Ms Lin was 33 years old. Isabelle was 36 years old. She had only been living at the premises for a short time.
[7]We use the pseudonyms for the co-offender and the victim allocated by the judge below.
Ms Lin was suffering from severe mental difficulties. On the night of the offending, she ‘got it into her head’ that Isabelle had stolen money from her. Isabelle denied this. The dispute had nothing to do with the applicant. The situation between Ms Lin and Isabelle ‘became physical’. Isabelle was attacked and assaulted. The applicant’s involvement in these events was unclear. Isabelle left the house. The applicant also left the house, and brought Isabelle back.
Following Isabelle’s return, the dispute about the alleged stolen money continued. Isabelle, the applicant and Ms Lin were in Isabelle’s bedroom. Ms Lin told the applicant that she believed the stolen money was hidden under Isabelle’s clothing.
Isabelle was wedged into a cupboard. The applicant pulled off, and cut off, layers of Isabelle’s clothing. She used a box‑cutter she said she had found in Isabelle’s room. No money was found under Isabelle’s clothes. Isabelle was left naked and in a totally vulnerable position.
The applicant threatened to cut Isabelle if she did not produce the money. Isabelle did not produce any money. The applicant used the box‑cutter to inflict multiple incisions into Isabelle’s left leg (charge 1 — intentionally cause injury). The cuts were long and one went from Isabelle’s hip to her knee. The judge described the assault as a ‘severe attack indeed’. During the attack, Isabelle was terrified and screamed out in pain. Ms Lin assisted to restrain Isabelle.
When Isabelle still had not produced the cash after being cut by the applicant, Ms Lin again demanded the money and punched Isabelle in the stomach. At some point, she also used a pair of scissors to cut a small portion of Isabelle’s hair from her head to get a reaction.
The applicant went to the kitchen and got a latex dishwashing glove. She returned to the room and told Isabelle that she was going to internally search her, and that if Isabelle kicked or moved, she would cut her open.
The applicant then penetrated Isabelle by placing a gloved finger inside her vagina and searching internally for the money. Ms Lin was either ‘egging her on’ or at least ‘agreeing with’ what the applicant was doing.[8] While the penetration was occurring, derogatory remarks were being made to Isabelle. Ms Lin and the applicant discussed whether the cash had been found. It had not. Isabelle cried, repeatedly told the applicant to stop and said ‘there’s nothing up there’. These events formed the basis of charge 2 — rape.
[8]Reasons, [25].
At one point in time, Isabelle turned around and looked up at the applicant, who appeared to be enjoying herself.
At another point Ms Lin used a lighter, in conjunction with a can of insect spray, to create a makeshift flamethrower, which she used to singe the front of Isabelle’s hair.
The applicant told Isabelle to ‘make sure you’re out in the morning’. The applicant checked on Isabelle a couple of times during the night, being concerned about at least one of the cuts to her leg, which was long and deep.
Ms Lin left the share‑house early the following morning. She called ‘000’ and told police that there had been an ‘altercation between three people’ involving a ‘box‑cutter and fists’, which had resulted in a person suffering leg injuries.
Ms Lin then attended at the local police station and reported her allegations of theft against Isabelle. She also disclosed details of her role in the initial assault on Isabelle but made no reference to the penetration of Isabelle’s vagina. She was arrested and was formally interviewed. She then made admissions to her involvement in the incident.
The applicant was arrested later that day. She was formally interviewed and made admissions to her involvement in the incident. She denied that anyone else was involved. The applicant pleaded guilty to the offences at the committal hearing, but later withdrew her plea and the matter went to trial.

The judge’s sentencing remarks

Following her conviction at trial on 10 May 2021, the judge sentenced the applicant on 31 August 2021. His Honour provided detailed reasons for imposing the sentences set out in the table above.
The judge noted that although the applicant had initially confessed to police, had expressed ‘quite sincere remorse’ in the course of the confession, and had pleaded guilty at a committal, she had subsequently withdrawn her plea. The trial had been conducted on the basis that the confession was false. For the purpose of sentencing, the judge took the view that the confession, which he described as ‘full and convincing’, was in fact true. The judge therefore accepted that within hours of the offending, the applicant was aware of what she had done and told the police what had occurred. However, the judge also accepted that the applicant was no longer exhibiting remorse, and described the evidence that she gave at trial as ‘totally implausible’. And although there had been no need for a contested committal, the applicant’s reversal of her plea following the committal meant that there was no utilitarian benefit from avoiding a trial.[9]
[9]Reasons, [2]–[5], [29], [40].
The judge recorded that the applicant had prior convictions, for some of which no conviction was recorded. However, he described two of the prior convictions as being of concern. One involved an assault on a person aged over the age of 60, for which the applicant had received an aggregate suspended sentence of three months in a Queensland court. More significantly, the applicant had completed a three year sentence for a series of arsons some two months prior to the offending.[10]
[10]Reasons, [6]–[7].
As to the nature and gravity of the offending, the judge said that although there was violence towards Isabelle perpetrated by Ms Lin earlier in the evening, once the applicant became involved ‘the criminality of what was occurring became much more significant’.[11]
[11]Reasons, [13]–[15].
The judge described the wounds inflicted on Isabelle as indicating a prolonged, considered and calculated act of torture to try and get money that was not even the applicant’s.[12] The applicant’s threat to cut Isabelle if she fought against the internal search would have been ‘a terrifying threat indeed’.[13] The offending was ‘extremely serious’.[14] It was ‘drawn out’ and ‘[i]n some senses it was gratuitous’, given that the money sought had nothing to do with the applicant. The applicant’s conduct was ‘degrading’ to Isabelle and involved an exercise of control and power, in the company of another.[15] The cutting of the legs and the rape were done at different times and for different purposes. The cutting was done to inflict pain and to torture Isabelle to get an answer, whereas the rape was a degrading search and penetration of another woman’s body.[16]
[12]Reasons, [22].
[13]Reasons, [24].
[14]Reasons, [31].
[15]Reasons, [36]–[37].
[16]Reasons, [68]–[69].
The judge noted that there had been a discussion at the plea hearing about whether the applicant’s moral culpability for the rape was lessened because the penetration was not for a sexual purpose. He acknowledged that there was a view that penetration for the purpose of trying to get money that was not even the applicant’s would tend to make the offending worse, in that the only motive was greed. However, the judge said that he would not ‘buy[] into that at all’ and declined to indicate whether the absence of a sexual motivation lessened or increased the applicant’s culpability.[17]
[17]Reasons, [33]–[34].
The judge recorded that rape is a standard sentence offence and proceeded to consider the objective seriousness of the offending. Having characterised the offending in the ways we have indicated in paragraphs 23 to 24 above, he indicated that, given the strange set of circumstances in which it occurred, the offending was of a ‘lower than medium level of seriousness’.[18]
[18]Reasons, [38]–[39].
The judge noted that the applicant’s reversal of her plea meant that Isabelle was required to be cross‑examined at trial. Isabelle was a compelling witness, and the fear and residual damage caused to her by the applicant’s actions were ‘palpable’. Following the trial, Isabelle provided a victim impact statement, in which she referred to the long and permanent scars on her leg. The scars were a reminder of what had happened and made her feel ‘like I am never going to escape what happened’. After the offending she was on the streets for a while, and had bad anxiety and other effects. Although Isabelle was a significant drug user at the time and the judge formed the view that she probably had a fairly difficult existence anyway, he said he ‘very much’ took her victim impact statement into account.[19]
[19]Reasons, [8]–[9], [41]–[43].
In relation to the sentence that had been imposed on Ms Lin, the judge said:
The first thing is that I take very little notice of the sentence. In fact a combination in the end, that your co‑accused received. You pleaded not guilty. She was at worst on her version of events aiding and abetting. There were matters I know in hers that would not assist you, and matters in yours that would not assist her.
But be that all as it may, it seems that this is not an appropriate situation for any real regard to parity, and accordingly I take all that no further.
…
The original submission was, I understand where it would have come from, bearing in mind an approach to parity, of a combined sentence in my view that in no way approaches the seriousness of what occurred.[20]
[20]Reasons, [32]–[33], [44].
The judge referred to the application of general and specific deterrence, denunciation, appropriate punishment and public protection. He said that in all the circumstances, a custodial sentence of very significant proportions was inevitable.[21]
[21]Reasons, [31], [44]
The judge then turned to matters personal to the applicant. He noted that at the time of the offending, the applicant was a relatively young woman, albeit that she had already spent time in custody.
The judge recorded that he had received a number of medical reports and references. He had received Judge Gaynor’s sentencing remarks in relation to Ms Lin. He had also received the sentencing remarks associated with the applicant’s sentence for the series of arsons, which set out her personal history and referred to a report from Dr Nina Zimmerman, a consultant psychiatrist.[22]
[22]Reasons, [45]–[48], [51].
Drawing from this material, the judge observed that the applicant had a very difficult childhood. She had been removed from her mother’s care at six months of age due to neglect. She had subsequently been brought up by her father and his new partner in circumstances involving both physical and emotional abuse. As a child she was assessed for anger, anxiety and behavioural issues. As a teenager she engaged in aggressive behaviour, had developmental delays and engaged in self‑harm. She had been admitted to hospital on numerous occasions, including as an involuntary patient. She had been treated with antipsychotics and antidepressants. Despite all this, she had managed to complete high school.
Hospital records and other material indicated that she had been diagnosed with borderline personality disorder and post‑traumatic stress disorder. She had also been diagnosed as being on the autism spectrum.[23]
[23]Reasons, [51]–[58], [60]–[61].
The judge accepted that the applicant had made efforts to rehabilitate after her finding of guilt. She had also formed a relationship with a new partner and her partner’s parents were prepared to offer her stable accommodation. She had expressed a desire to undertake various courses and to work in advocacy for prisoners and had already been able to complete a significant number of courses.[24]
[24]Reasons, [49], [50], [61], [85].
The judge noted that during her time in custody, the applicant had spent various periods in the psychiatric unit. She also had medical problems. She suffered from Ehlers‑Danlos syndrome, which caused her pain and muscle injury. However, there was no evidence that this could not adequately be dealt with in the custodial environment.[25]
[25]Reasons, [63], [67], [75]–[76].
The judge described the applicant’s prospects of rehabilitation as ‘pretty dubious’, despite her best intentions. The risk of re‑offending, unless the applicant came to terms with the need for treatment, was ‘certainly moderate and probably verging towards high’.[26]
[26]Reasons, [72].
The judge accepted that limb 1 of the principles set out in R v Verdins[27] applied, in that the applicant’s difficulties in life caused her to have less capacity to reason as to the wrongness of the rape (but not so much the intentionally causing injury). Although the applicant had medical problems that would affect her time in prison, she had previously been incarcerated and there was no evidence that her circumstances could not be adequately dealt with in a custodial setting (such that limbs 5 and 6 of the principles in Verdins concerning the impact of incarceration upon her were not enlivened).[28]
[27](2007) 16 VR 269; [2007] VSCA 102.
[28]Reasons, [74]–[76].
Having given the matter ‘anxious consideration’, the judge said that the applicant’s sentence needed to be significant and to reflect the criminality of her conduct.[29]
[29]Reasons, [74].

Consideration

As we have indicated, the applicant’s sole proposed ground of appeal concerns the parity principle. That principle reflects the notion that those who commit the same or similar offences should be treated equally, save where differences in the respective offenders’ age, background, previous criminal history and general character, and the part which each played in the commission of the offence, justify the imposition of different sentences.[30] The purpose of the principle is to ensure consistency in punishment.[31]
[30]See Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ); [2001] HCA 64; Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Dawson and Gaudron JJ); [1997] HCA 26; Green v The Queen (2011) 244 CLR 462, 472–3 [28] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49 (‘Green’).
[31]See Kellway (a pseudonym) v The King [2023] VSCA 109, [124] (Emerton P, Niall and Kaye JJA) (‘Kellway’).
For an appellate court to intervene on the basis of disparity, the disparity between the sentences imposed on co‑offenders must be such that the difference is ‘marked’ or ‘manifest’. In other words, the disparity must engender an objectively justifiable sense of grievance on the part of the offender on whom the heavier sentence is imposed — on the basis that it gives the appearance that justice has not been done.[32]

Proposed ground of appeal

[32]See Kellway [2023] VSCA 109, [127] (Emerton P, Niall and Kaye JJA); Hafner v The Queen [2012] VSCA 190, [17] (Buchanan JA, Bongiorno JA agreeing at [26], Osborn JA agreeing at [27]); Green (2011) 244 CLR 462, 474–5 [31] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.

The applicant framed her proposed ground as follows:
Ground 1:
(a)The learned sentencing judge erred in finding that ‘this is not an appropriate situation to have any real regard to parity’ and therefore failed to have any regard to the sentence imposed on the co‑accused Lin; and
(b) The sentence is disparate when compared to the co‑accused.
At the hearing, counsel for the applicant explained that ground 1(a) was directed to the process the judge applied in relation to parity, and ground 1(b) was directed to the outcome the judge reached as a result of that process — a sentence that was unjustifiably disparate when compared to that imposed on Ms Lin, in that the difference between the sentences imposed on the two offenders was ‘not capable of rational explanation’. The two aspects of ground 1 were said to be related, in that the analysis of whether the applicant’s sentence was unjustifiably disparate when compared to Ms Lin’s sentence was assisted by having regard to the process adopted by the judge. However, it was not necessary for the Court to be persuaded of ground 1(a) for the applicant to succeed; were the Court persuaded that the sentence imposed on the applicant was unjustifiably disparate when compared to Ms Lin’s sentence, the sentencing discretion would be re‑enlivened.
Although the written case filed by the respondent went some way towards conceding the alleged error in process to which ground 1(a) was directed, at the hearing, the respondent sought to defend the judge’s remark that ‘this is not an appropriate situation for any real regard to parity’. Counsel for the respondent contended that when that remark was viewed in the context of the sentencing reasons as a whole, and against the background of the approach taken in the plea hearing, the judge was saying no more than that this was not an appropriate situation for the applicant to receive the same sentence as Ms Lin. The judge was aware of the principle of parity and took it into account, concluding that the circumstances of the applicant’s case called for a far higher sentence than that imposed on Ms Lin.
Ultimately, it is unnecessary to decide what the judge was intending to convey by this remark.[33] That is because, as we have said above, the respondent conceded ground 1(b).
[33]Nor is it necessary to decide whether the judge erred in remarking that Ms Lin ‘was at worst … aiding and abetting’, as the applicant asserts. The applicant says that this remark understated the role of Ms Lin in the offending, who she said was the instigator of the offending, actively encouraged the commission of the offences and contributed to the assault.
The respondent accepted that, when the applicant’s sentence was compared with the sentence imposed on Ms Lin, there was a level of disparity between the sentences that was ‘hard to defend’, even giving the differences between the two cases ‘as much weight as they could possibly bear, and granting the full complement of discretion to the sentencer’. The respondent accepted that the two sentences did not bear a sensible relationship to each other. In those circumstances, the respondent conceded that it falls to this Court to re‑sentence the applicant.
As we have indicated, we consider this concession was properly made. Although there are differences between the applicant and Ms Lin in terms of their antecedents, their personal circumstances, the mitigating factors they were able to call in aid, and the part they each played in the offending, the disparity between their sentences is such that an objective observer would not regard equal justice as having been done. The disparity is so marked as to be manifestly excessive.

The re-sentencing exercise

The respondent submitted that the proper application of the parity principle could only bring the applicant’s sentence down ‘very modestly’ without resulting in a manifestly inadequate sentence.[34] That was both because the sentence imposed on Ms Lin was an extraordinarily lenient sentence and because there were various differences between the applicant and Ms Lin.
[34]See Green (2011) 244 CLR 462, 475–6 [33] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49; Taleb v The Queen (2014) 42 VR 666, 674–9 [39]–[52] (Neave and Weinberg JJA); [2014] VSCA 96.
In sentencing Ms Lin, Judge Gaynor emphasised matters that included Ms Lin’s early plea of guilty; her remorse; her lack of relevant prior convictions; the undiagnosed schizophrenia from which she was suffering at the time of the offending; her extremely difficult childhood involving neglect, homelessness and abuse; her ‘extremely positive’ prospects of rehabilitation and her ‘enormous strides towards a responsible law‑abiding life’. Ms Lin was said to have made a ‘remarkable turnaround’ after being placed on an involuntary mental health treatment program while on bail. She no longer lived a life of drug addiction, unemployment and mental health difficulties. Instead, she was working full‑time, living in private rental accommodation, with the full‑time care of her daughter, on a proper psychiatric regime, and had not used drugs for a long time. Judge Gaynor took the view that Ms Lin’s case was quite exceptional and that interrupting the co‑offender’s progress by returning her to custody would be in neither her interests nor the interests of the community. In relation to the rape charge, she said that she was satisfied that the penetration of Isabelle ‘was not done for any reasons of sexual gratification’, but ‘in the context of a chaotic drug‑ridden household’.[35]
[35]R v Powers (a pseudonym) [2020] VCC 1727, [1], [22]–[26], [28], [33]–[40], [46]–[47].
The respondent emphasised that in contrast to Ms Lin, the applicant was younger; she had pleaded not guilty; she was the primary offender; she could not rely on evidence of mental instability as strong as that relied on by Ms Lin; she had a worse criminal history and indeed, at the time of the offending, she was not long out of custody.
The applicant conceded that there were relevant differences between Ms Lin and herself, and that she ought receive a higher sentence than Ms Lin. However, she also sought to emphasise similarities between Ms Lin and herself. While she had been on bail prior to trial, she too had made efforts to rehabilitate. Like Ms Lin, she had experienced a difficult childhood, having been removed from her mother’s care due to neglect and growing up in an environment that a previous sentencing judge had described as ‘appalling’. She had extensive contact with child and adolescent mental health services and had attracted diagnoses of borderline personality disorder, post‑traumatic stress disorder and autism spectrum disorder. And like Ms Lin, she had not engaged in the act of sexual penetration of Isabelle for any sexual motivation.
As to this last matter, although the applicant did not contend that the ‘unusual’ motivation in this case attenuated the gravity of her offending, she said that it was a relevant consideration when assessing the likelihood that she would re‑offend and therefore the weight to be accorded to specific deterrence and the need to protect the community. In response to this submission, the respondent urged caution, observing that the applicant had chosen to involve herself in someone else’s dispute and then by her own actions had dramatically escalated the seriousness of it, for reasons which remained unexplained. In these circumstances, the need for specific deterrence was not reduced by the ‘atypical’ motivation of the rape.
The applicant placed before this Court additional materials relevant to sentencing, in the event that the sentencing discretion was re‑opened. Chief among these materials was a report from Dr David Thomas, a forensic psychiatrist, dated 13 August 2024. Dr Thomas interviewed the applicant in April 2024 and carried out a telehealth assessment in May 2024. He was also provided with various documents outlining the applicant’s offending, her antecedents, and other material relating to her medical and psychological state.
Dr Thomas gave an extensive account of the applicant’s personal history, based on her reported history and the history recorded in documents he reviewed. This included severe physical, sexual, emotional and other abuse by her father and stepmother. Her first recollection of contact with mental health services was around the age of 11. She was believed to have suffered at least two instances of head injury leading to loss of consciousness at the hands of her father. She left home at around 17 years old, after which she moved around Queensland and was homeless for a period. She had a history of suicide attempts and self‑harm.
Dr Thomas recorded that the applicant had worked briefly in the hospitality sector before studying cybersecurity at Griffith University. She moved interstate after her father was observed with a shotgun near the family violence shelter in which she was living. Within months of moving to Victoria, she had committed the arson offences for which she was sentenced to a custodial sentence. She completed her Masters in Cybersecurity and Finance while in custody. Upon her release she worked briefly for a multinational bank and an information technology company.
Dr Thomas said that the applicant’s history and presentation was consistent with a diagnosis of borderline personality disorder. This meant that she was poorly equipped to cope with the challenges of daily life without engaging in maladaptive responses that could be extreme in nature and scope. Thus she had engaged in meltdowns characterised by repeated self‑harm and suicide attempts in custody, as well as destructive behaviour, and had experienced emotional dysregulation, heightened anxiety and distress.
Dr Thomas also said that the applicant’s history and presentation was consistent with a diagnosis of autism spectrum disorder without accompanying intellectual impairment (previously known as Asperger Syndrome). He opined that the applicant’s autism had, and would continue to have, an adverse impact on her experience of custody. She struggled to respond appropriately to the non‑verbal communication of others and had a tendency to misinterpret the words and actions of others, which had resulted in considerable difficulties in her interpersonal interactions. Although she had attempted to cope with this situation by isolating herself from others, this strategy was only partially effective and was likely to impact on her prospects of rehabilitation if pursued for a prolonged period.
The applicant also provided the Court with a large number of certificates confirming that she had engaged extensively with the educational and vocational training system within prison. The vast majority of these certificates concerned her engagement with that system after she was sentenced in August 2021. Since that time, she had participated in courses across a wide range of fields, including entrepreneurship, business operations, horticulture, infection control, information technology, cleaning operations and construction.
Finally, the applicant provided the Court with a letter from a co‑facilitator of the Freckles LGBTIQ+ Program in Dame Phyllis Frost Prison, who spoke of the applicant’s positive participation in individual and group therapy provided within that program, and letters from her partner and her partner’s parents, who demonstrated their support for the applicant and spoke of their concerns for her declining mental and physical health in prison.
The material filed by the applicant indicates that aspects of the applicant’s situation have changed, or have at least have become clearer, since she was sentenced.
Although the judge was aware that the applicant had been diagnosed with borderline personality disorder and autism, he had very little information about the latter. Dr Thomas provided information in his report about the adverse impact that the applicant’s autism has had on her experience of custody, which has made that experience significantly more onerous than it would be for inmates without autism. He refers to the considerable difficulties that she has experienced in her interpersonal interactions with custodial officers and other inmates. Dr Thomas noted that the applicant attempts to cope with these difficulties by spending most or all of her time on solitary pursuits or activities, and that this ‘single‑minded pursuit of isolation’ and the strategy of avoiding social interactions for a prolonged period will ultimately have a negative effect on her prospects of rehabilitation. He observed that access to specialist social skills groups would assist her in mitigating this risk, but such groups are difficult, if not impossible, to access in Victorian prisons.
The respondent accepted that, in light of this material, it is open to this Court to find some application of limb 5 of the principles in Verdins, which was not the case when she was originally sentenced.
We note that the report of Dr Thomas is consistent with the observations of the applicant’s partner, who has continued the relationship that she commenced with the applicant before her imprisonment. She has observed a decline in the applicant’s health and wellbeing during her time in prison. She and her parents have maintained their support for the applicant throughout the two years since she was sentenced.
Over that two‑year period, the applicant has also demonstrated real commitment to educating herself and taking advantage of opportunities for self‑improvement in prison. While the judge took into account various educational and vocational courses that the applicant had undertaken prior to sentence, the volume and nature of the courses she has undertaken is impressive. As her partner indicates, the applicant has now participated in many of the programs available in prison. These include the Freckles LGBTIQ+ program, in which she has been described as a ‘natural leader’ who has made ‘positive changes to herself and to the lives of people around her’. These matters reflect positively on her prospects of rehabilitation, about which the judge had expressed scepticism at the time of sentence.
We have taken all these matters into account as supporting the imposition of a lower sentence than that imposed by the judge. However, it is the proper application of the parity principle that is of most significance to the exercise of our sentencing discretion. Given the need to ensure parity with the sentence imposed on Ms Lin, we regard a sentence close to the bottom of the range for offending of this nature to be appropriate. Having said that, it remains necessary to bear in mind that Ms Lin pleaded guilty, whereas the applicant proceeded to trial. That means there is no prospect of reducing the applicant’s sentence so that it is close to the sentence imposed on Ms Lin. That is, the appropriate sentence will be a sentence close to the bottom of the range for offending of this kind where the offender proceeded to trial.
We start with the offence of intentionally causing injury. The respondent referred us to three ‘somewhat comparable’ cases in which longer sentences had been imposed for instances of this offence committed in the context of unprovoked attacks and following a plea of guilty.[36] However none of those sentences involved an application of the parity principle and they are therefore of limited assistance in the present case.
[36]Rivera v The Queen [2020] VSCA 5; Wilson v The Queen [2022] VSCA 2; Magee v The King [2023] VSCA 80. The head sentences imposed in these cases were between 3 years and 9 months’ imprisonment and 5 years and 11 months’ imprisonment.
We accept the respondent’s contention that the sentence imposed on the applicant for intentionally causing injury was within the range for offending of this nature. We consider this case to be a serious example of this offence. Isabelle was left with permanent scarring from multiple lacerations inflicted with a box‑cutter. The lacerations were inflicted while she was in an extremely vulnerable position, naked and wedged in a cupboard by the applicant and Ms Lin. Isabelle’s injuries were sustained during an act of torture perpetrated by the applicant. We accept that the sentence imposed could ‘fairly be described as a lenient sentence’, given the applicant’s plea of not guilty, lack of remorse and the nature and gravity of the offending.
Nevertheless, given the need to ensure parity with the sentence imposed on Ms Lin, while bearing in mind the applicant did not plead guilty, we will impose a sentence of 2 years and 6 months’ imprisonment.
Turning to the offence of rape, the applicant submitted that the circumstances of the rape were ‘idiosyncratic, if not unique’, so that no direct comparisons could be found with sentences imposed in other cases.[37] Nonetheless, the parties accepted that the sentencing statistics produced by the Sentencing Advisory Council may provide some assistance. We have reviewed those statistics. We have had regard only to the statistics that concern sentences imposed for rapes committed on or after 1 February 2018, when rape became a standard sentence offence.[38] Those statistics establish that during the period from 2017–18 to 2021–22, the head sentence imposed for rape has generally been no lower than four years. Of the 60 sentences that the statistics record as having been imposed in the County and Supreme Courts over this period, only two of the sentences were lower than four years. The sentence imposed on Ms Lin was one of these, and is the only sentence below two years.[39] Furthermore, only three sentences fell between four and five years; the vast bulk of the sentences imposed for rape in that period were five years or more; and the average sentence was over six years. The statistics do not reveal whether the sentences in question follow a plea of guilty or not.
[37]The applicant identified cases that she said might nevertheless be of some assistance: R v Basile [2023] VSCA 308; R v Beck [2021] VSCA 88; Nachar v The Queen [2021] VSCA 242; Wright v The Queen [2021] VSCA 243, each of which involved a plea of guilty. The head sentences imposed in these cases varied between 6 and 8 years and the non‑parole periods varied between 3 years and 6 months and 6 years. However none of these cases involved an application of the parity principle and they are therefore of limited assistance.
[38]Pursuant to s 5B(2)(b) of the Sentencing Act 1991, in sentencing an offender for a standard sentence offence, a court must only have regard to sentences previously imposed for the offence as a standard sentence offence.
[39]Sentencing Advisory Council, Sentencing Trends for Rape in the Higher Courts of Victoria 2017–18 to 2021–22 (Snapshot No 279, September 2023) 3.
We take into account that the standard sentence for rape is 10 years. This means that 10 years is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle of the range of seriousness.[40] We agree with the judge that taking into account those factors, the offending is of a lower than medium level of seriousness.
[40]Sentencing Act, s 5A(1)(b).
We accept that the unusual circumstances of the rape affect the applicant’s risk of re‑offending, and therefore the weight to be afforded to specific deterrence and the need to protect the community. We take these matters into account, but ultimately the most significant factor is the need to ensure parity with the sentence imposed on Ms Lin, in a context where the applicant pleaded not guilty.

In light of all the above matters, we will impose a sentence of 5 years’ imprisonment for the charge of rape.
We consider that, given the distinct nature of the infliction of the injuries and the subsequent rape, some degree of cumulation is required in relation to the two offences. However, we are mindful of the principle of totality. In our opinion that principle requires a modest degree of cumulation between the sentences for the two offences. Thus we will direct that one year of the sentence for intentionally causing serious injury be cumulative on the sentence for rape.

Conclusion

We will grant the application for leave to appeal, allow the appeal, set aside the sentence imposed and re‑sentence the applicant as follows:
Charge 1 (intentionally cause injury) — 2 years and 6 months’ imprisonment;
Charge 2 (rape) — 5 years’ imprisonment.
The sentence on charge 2 will form the base sentence. Twelve months of the sentence imposed on charge 1 is to be served cumulatively upon the sentence imposed on charge 2, making a total effective sentence of 6 years’ imprisonment.
We direct that the applicant serve 4 years’ imprisonment before becoming eligible for parole.
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[2024] VSCA 205

17 September 2024