Director of Public Prosecutions v Chapman

[2025] VCC 55

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 24-00417

DIRECTOR OF PUBLIC PROSECUTIONS

v

MITCHELL CHAPMAN

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	3 February 2025
DATE OF SENTENCE:	3 February 2025
CASE MAY BE CITED AS:	DPP v Chapman
MEDIUM NEUTRAL CITATION:	[2025] VCC 55

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - SENTENCE

Catchwords:  Aggravated burglary, threat to kill, contravene Family Violence Intervention Order, prohibited person possess firearm, damaging property, assault with a weapon, plea of guilty, childhood disadvantage

Legislation Cited:                  s6AAA Sentencing Act 1991

Cases Cited:  

Sentence:Imprisonment, Total Effective Sentence 197 days, 30 month Community Correction Order, work conditions, supervision, drug and mental health treatment and assessment for rehabilitation, programs to address offending behaviour, Forfeiture Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Hogan	Office of Public Prosecutions
For the Accused	Ms K. Ljubicic	James Dowsley & Associates

HIS HONOUR:

1Mitchell Chapman, you have pleaded guilty before me to charges of aggravated burglary, a charge which carries a maximum penalty of 25 years' imprisonment, a charge of making a threat to kill, five years' imprisonment maximum, contravene a family violence order intending to cause fear, five years' imprisonment maximum, prohibited person possessing a firearm, which carries a maximum penalty of 10 years' imprisonment, and damaging property which carries a maximum penalty of 10 years' imprisonment.  You also admitted before me relevant summary offences, assault with a weapon which has a two years' term of imprisonment maximum and contravene a family violence order which has a two years' term of imprisonment maximum.

2You have admitted relevant prior offences.  Yours is not a lengthy criminal history but it does disclose a history which raises concerns about your ability to regulate your emotions and raises concerns for the safety of your mother and siblings.  The circumstances of your offending are very serious and reveal the objective gravity of your offending.  Those circumstances are set out in the summary of prosecution opening dated 5 July 2024 which forms part of these reasons for sentence.

3There was a family violence intervention order with you as the respondent and your mother, who I will refer to as Mrs Chapman[LG1] , and your bothers, as the affected family members.  That order ran from 21 November and was served on you on 28 November 2023.  On 1 December 2023, you attended at your mother's house in Wantirna.  Your mother was home, as were your brothers, and your attendance there was in breach of the intervention order.  You arrived at the house carrying a sledgehammer.  You approached the front door and then went to the back door. 

4Your reason for attendance related to your apparent frustration and anger over some money being transferred from your account, which related to your borrowing your brother’s mobile phone, stating that you only needed it for two weeks and that if it was not returned money could be taken out of your account.  When this happened, it angered you and you attended the residence.  You hit the back glass sliding door with the sledgehammer a number of times and shattered the glass door. 

5Your mother awoke to the sound of the glass smashing, and she saw you at the rear door holding a sledgehammer. She ran into her bedroom and locked the door as understandably she was terrified.  You then smashed the security door which allowed you to gain access to the house.  After you entered, you walked into the front bedroom which was your mother's bedroom.  You kicked the door to her bedroom.  This broke the lock to the door; you entered the room and raised the sledgehammer above your shoulder as if you were going to hit her.  You yelled 'Put the money in my account.  It's two weeks before Christmas.  I will kill you'.

6Your brother woke up and saw you holding the sledgehammer above your mother's head.  He heard you say, 'Send the money back'.  You also said, 'I'll burn the fucking house down next time'.  You left the house through the front door and your mother raised the alarm with the police.  Your mother was petrified.  It was a frightening and terrifying episode for your mother and brother.  She told police 'I'm petrified of Mitchell.  If he gets hold of me, he will kill me.  I feel like my kids are going to be taken from me because I cannot protect them against Mitchell'. 

7When you were arrested by police at your residential address of Dunraven Court, Narre Warren police located the imitation firearm which is the subject of the charge of prohibited person possess firearm on the indictment.  Those facts demonstrate how serious this offending is.  I do accept that the background and explanation for your offending in this matter is complex.  It involves the interaction between your untreated ADHD, drug use, your feelings of resentment, frustration, even antipathy towards your mother and childhood instability and exposure to a lifestyle that involved alcohol abuse and violence. 

8As I have stated, the objective gravity of your offending is high.  I received victim impact statements in this matter.  Obviously entering someone's home by smashing your way in with a sledgehammer in the middle of the night is a terrifying and frightening episode, one that must be denounced on behalf of the community.  Your mother stated 'I honestly felt that that was mine and [my sons] last moments on this earth'.  She also said, 'She felt useless because I couldn't protect my sons in their own house, powerless'.  She said the offending is affecting her sleep and she does not leave her house unless for shopping or medical appointments.

9She also said 'We used to go out a lot, but now we stay home where I can see my boys.  I get nervous and anxious whey they're not near.  We've lost so much, including our feeling of security'.

10In your brothers' victim impact statement, it was said:

'In that moment I was scared, angry, and felt completely vulnerable, ashamed.  I couldn't do anything and my stomach dropped watching my mum shaking in absolute fear and that made me feel guilt and sadness that my mum had been put in that position'.

11He also stated that he suffered mentally and experienced nightmares, flashbacks and panic attacks. 

12Your youngest brother said:

'I wasn't able to sleep because I was still shook from when it happened.  I wasn't able to go to school because I was in hiding in a hotel.  Me and my brother weren't able to do our motorbike riding and I wasn't able to see my friends either'.

13It affected his mental health and had him in a bad headspace, in reference to his mental health.

14The serious aspects of the offending are that it occurred in the context of family violence and in the context of the family violence intervention order.  I have already mentioned the early hours of the morning and breaking into the house.  The threat to kill whilst armed with a weapon is also a serious matter.  You were also subject to a community correction order at the time of the offending.  It has been pointed out that as recently as your CCO assessment that you've indicated that somehow your offending sat within a context of a history of violent expressions within the family home.  I reject this and it is clear that insight remains a problem for you.

15I accept the impacts to the victims as expressed in those victim impact statements, and I take them into account as I must.  Clearly, your victims remain in fear. But I am satisfied that you are now in a far more stable situation than you were at the time of the offending, and you have also experienced the salutary experience of your first time in custody, which was not a short period of remand, and through the supports of the CISP program, whilst on bail I am satisfied that you have now found a level of stability with your medication and abstinence that removes substantially the concerns in relation to the safety of your mother and siblings from the court's perspective. That is not to say of course that they still remain terribly in fear, and I understand that that's likely to continue. 

16Turning to your personal circumstances, I do not propose to detail all of your personal circumstances herein.  The personal histories are set out in
Ms Ljubicic's submissions and in the reports of Christine Kennedy and Nicole Zimmerman.  I was told you are a proud Wiradjuri man, 26 years of age.  You are the oldest of three siblings, in the sense of two half-siblings, nine and
12 years your junior, and of course I have already referred to those siblings as the authors of the victim impact statements. 

17Your father left home when you were two weeks of age.  You met him once when you were five.  Apart from that you have had no contact with him, and this has been part of your development which has impacted negatively upon you.  I accept that your childhood was difficult.  Initially, prior to moving to Melbourne, you lived in Housing Commission housing in Campbelltown, Sydney in your primary school years and witnessed crime and drug use in that environment.  Your mother battled alcohol and substance use I was told. 

18You were diagnosed with ADHD at the age of six and this has clearly been a formative part of your development.  You were prescribed medication.  You moved to Melbourne to commence high school and there was disruption to your Ritalin use and your medication, and you had great difficulty at school, difficulty fitting in, no doubt largely due to your condition, but not solely due to your condition and no doubt due in part to the instability in your home life.  You had difficulty concentrating at school.  You commenced drinking alcohol at 15.  You also used cannabis and methamphetamine from the age of 16 and I accept that these uses, in particular the methamphetamine, was a form of self-medication in relation to ADHD. 

19It is the experience of the court that this is not an uncommon occurrence for young people in your situation at that time given your background.  As I understand, you have essentially been without ADHD medication for many years until you were incarcerated.  You are now medicated in the community, and this is a very positive step.  A significant part of the supports and discussion whilst you were on CISP bail touched on your need for stability and housing but also in particular your need for medication and that was an important factor once that was put in place. 

20I was told you left the family home when you were 15 years of age and you commenced living with your girlfriend who had a three-month-old son and you continued your schooling, completing Year 10, whilst assisting to support your partner's son.  You commenced a mechanic's apprenticeship.  These steps, much to your credit at that point of time given your difficulties in childhood, and they are indicative of someone who does have the ability to maintain stability in the community and engage in prosocial activities.  In 2017, another son, was born to you and your partner and you experienced the trauma of him having to undergo open heart surgery when aged two weeks. 

21You continued to pursue your mechanic's apprenticeship until you were remanded in custody in 2018.  You began factory work thereafter but you suffered a hand injury which then placed you on WorkCover and I was told you have struggled to acquire work since that time.  You are now in a new relationship with a partner of four years.  You do not have any children, and I was told that your partner provides positive support to you.  The maternal grandmother of the boys I have mentioned cares for them, and you have engaged in supervised access and it was put to me that that's another rehabilitative factor in your case that you are working towards being in a position where you can have regular access with those boys.  It is a positive thing for your rehabilitation.

22You have spent more than six months on remand for the matters before me.  It is your first time in custody.  You were bailed on 14 June last year and as part of your bail you had to abide by the CISP support and conditions.  You have appeared before me on a monthly basis and I have received reports monthly as to your progress.  For the most part, that progress has been positive.  It has not been glowing, but I accept that to a large extent in part the slow steps towards rehabilitation were due to the difficulties in accessing medication.  Obtaining the correct medications for your condition was a very important aspect of the supervised bail process.

23I have taken into account that length of time you have been on supervised bail and the way you have conducted yourself when you have regularly appeared before me and the reports that I have received as to the progress you are making.  It is essential that you remain sober and medicated in order to continue your rehabilitation and to cease to present a threat to the safety of others. 

24One of the reasons for the adjournment in the matter was to obtain a report from Dr Zimmerman and this was obtained and contains some important findings.  Dr Zimmerman confirms that you meet the criteria for attention deficit hyperactivity disorder which is in partial remission due to your treatment with the medication Vyvanse.  Dr Zimmerman observed that at the time of your offending, your ADHD was untreated, and you were abusing ice and in her opinion she stated:

'I believe that it is likely that as a result of both of these factors, he will have been disorganised and impulsive.  It is difficult to disentangle the extent to which these factors contributed to his offending behaviour at the time, however I believe that it is likely that his ADHD will have exacerbated the impulsivity present in his offending behaviour'.

25What was submitted to me was that based on the findings of Dr Zimmerman, there is a realistic connection between your mental health condition and the offending behaviour in that it exacerbated impulsivity present in your offending behaviour.  I do accept that there is a connection there between the untreated ADHD and the impulsivity and dysregulation that was apparent in the offending before me. 

26It is not a significant matter in terms of reducing moral culpability, but it is a factor, and it is a factor that in combination with the findings I have made in relation to the disadvantage and instability in your early life and the family dynamics, that in combination places your moral culpability in a context and in a light that does not detract from the very serious aspects of the offending but helps explain the offending and helps from a position of assessing prospects of rehabilitation.

27The adherence to the CISP bail program in particular, in combination with the salutary experience of more than six months in custody, satisfies me that you do have reasonable prospects of rehabilitation and in particular, as I have stated, that you do not pose an unacceptable risk to others. 

28You are now 26.  There have been no subsequent criminal matters whilst on bail.  You have taken responsibility for the offending and pleaded guilty whilst I note there are concerns that remain as to your insight and to a large extent they are concerns that in my assessment are wrapped up and entwined with a family history which it is beyond the scope of this court to unravel and tease out.

29You are now engaging in appropriate treatment for ADHD and that impulsivity and disorganised thinking contributed in part to the offending.  You have motivation to continue your path of rehabilitation.  You have engaged in alcohol and drug treatment whilst on bail and the orders that I am about to make by way of sentence will require that to continue. 

30Community safety and protection are very important factors when it comes to this type of offending, as is general deterrence and denunciation of the offending.  Prospects of rehabilitation need to be assessed in relation to how those factors are best addressed.  Where there is demonstrated rehabilitation, albeit it for a relatively short space of time in your case, there is a protective factor in supporting that continued rehabilitation where those prospects are good, and I find that your prospects are good. 

31I do find that the length of time you did spend in custody in relation to this matter which will form part of the sentence, has had a specific deterrent effect upon you and, when I have assessed all of the factors that I must, including general deterrence and denunciation, I am satisfied that for the principal charge and the other charges, the principal charge of aggravated burglary, a combination sentence can meet those factors.

32I sentence you as follows.

33I had you assessed for a community correction order which we have just discussed, and that assessment found you suitable with proposed conditions which I will adhere to.  There was also a Mental Health Advice and Response Service report that I received as part of that process and that report confirmed some of the matters raised in Dr Zimmerman's report. 

34I now turn to sentence. 

35On the charge of aggravated burglary, you are sentenced to 180 days' imprisonment in combination with a two-and-a-half-year community correction order. 

36As part of that community correction order, you will be required to perform 150 hours of unpaid community work. 

37You are also required to attend for drug treatment and rehabilitation assessment as directed, mental health assessment and treatment and rehabilitation as directed and to attend programs to reduce re-offending as directed. 

38You will also be subject to supervision. 

39I have not placed in that order a non-association condition as I understand that there is still an intervention order and you must understand that if you breach an intervention order, that will be an offence which is a breaching offence of this community correction order and in that circumstance I would have no difficulty in re-sentencing you to a further term of imprisonment. 

40The charge of making threat to kill, you are sentenced to four months' imprisonment. 

41The charge of contravention of an order intending to cause harm or fear for safety, you are sentenced to 180 days' imprisonment. 

42The charge of prohibited person in possession of an imitation firearm, you are sentenced to six months' imprisonment.

43The charge of damaging property, one month imprisonment. 

44Seventeen days of the sentence of contravention of order intending to cause harm or fear is to be served cumulatively upon the sentence imposed on Charge 1.  Otherwise, those sentenced are to be served concurrently.  In relation to the summary offences, assault with a weapon, you are sentenced to one month's imprisonment, and in relation to contravene family violence order, you are sentenced to one month's imprisonment.  Those sentences are otherwise to be served concurrently other than the cumulation I ordered in respect of the sentence imposed on Charge 3. 

45I declare that you have served 197 days as pre-sentence detention in relation to the matters before me. 

46Pursuant to s6AAA[1], if it were not for your pleas of guilty in relation to these matters, I would have sentenced you to a total effective sentence of three and a half years' imprisonment with a two-year non-parole period. 

[1] S6AAA Sentencing Act 1991

47I make the forfeiture order that is sought. 

48Now, Mr Chapman, do you consent to the community correction order?

49OFFENDER:  Yes, Your Honour.

50HIS HONOUR:  Well that is now going to be prepared and I will sign it and you will be asked to place your signature on it.  I have touched on this already, but now I formally explain to you that if you breach that order by non-compliance, so that is non-attendance or not attending programs as directed without a reasonable excuse or by further offending, any offence, you can be brought back before me for re-sentence.  And as I have said, if that offending related to breach of an intervention order, I would not have any difficulty at all about changing this sentence to a gaol sentence, so keep that in mind.

51All right, now is there anything else?

52MS LJUBICIC:  Has Your Honour set out the total effective sentence just so that I ‑ ‑ ‑

53HIS HONOUR:  Well yes, the total effective sentence is effectively the 197 days in combination with a two and a half year community correction order.  Yes.

54MS HOGAN:  As the court pleases.

55HIS HONOUR:  All right.  Well we will prepare that order.  I will sign it and then you will have to sign it Mr Chapman, so you will just remain here.

56(Short adjournment.)

57HIS HONOUR:  All right, Mr Chapman.  I have signed that order.  You will now be asked to sign it and then we will get you some copies of it and then you can be on your way and Ms Ljubicic will explain to you what your obligations are in relation to that.

58OFFENDER:  Okay.

59HIS HONOUR:  Give that to him now.

60MS LJUBICIC:  Mr Chapman consents to the order, Your Honour.

61HIS HONOUR:  Thanks, Ms Ljubicic. 

62MS LJUBICIC:  As the court pleases.

63HIS HONOUR:  All right.  Well we will get some copies for you, Mr Chapman.  You are excused, Ms Ljubicic.

64MS LJUBICIC:  As the court pleases.

65HIS HONOUR:  And yes, make sure you abide by it, Mr Chapman.  Like I said, I do not want to have to see you back here.  All right.

66OFFENDER:  Thank you, Your Honour.

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[LG1]Should this matter be allocated pseudonyms?