Director of Public Prosecutions v Chapman

[2021] VCC 1259

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-00561

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEIGH CHAPMAN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 August 2021
CASE MAY BE CITED AS:	DPP v Chapman
MEDIUM NEUTRAL CITATION:	[2021] VCC 1259

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Ms A. Cannon	Marshall Jovanovska Ralph

HIS HONOUR:

1Ashleigh Chapman, on 10 May of this year you were convicted after a short trial by a jury of one charge of causing injury intentionally and one charge of rape.  Those crimes carry maximum penalties of ten years and 25 years respectively.

2You are now 27 years of age and in this circumstance you do not receive the usual benefits of pleading guilty, which would have been indeed significant.  It is a strange situation where I will be dealing with this again in a moment, you confessed to police and during the course of that confession expressed in my view quite sincere remorse.

3You also pleaded guilty at a committal which was also - and that was not led by the Crown at the trial, which also would tend to support that.  However, the difficulty from my point of view is, and unfortunately yours, that subsequent to that committal you have determined to plead not guilty and the trial was run on the basis that the confession in fact was false.

4I am going to take the view that the confession in fact was true, as the jury did, and I have no doubt that that is so, and accordingly whilst at this point in time not exhibiting remorse, I accept that within hours of the offending occurring that you were aware of what you had done and as you said to the police in that record of interview when they asked you why it had happened, and why you were confessing you said, 'Just best to do it this way, what she went through, because of that I couldn't put her through that if she ever had to go to court and look her in the eyes and tell her that I didn't do anything'.

5It is not going to change anything but, as I say, I have seen the record of interview obviously and that was a very compelling statement of remorse.  Unfortunately there is no utilitarian benefit and none of that aggravates the situation insofar as you are concerned, but it certainly in this situation does not help.

6You do have prior convictions, some without conviction, but two are of concern.  I am not aware of the detail of it but you received what would appear to be an aggregate suspended sentence of three months in Queensland for a matter which included an assault on a person over the age of 60.

7I do not know what that is about but it does cause some concern.  More significantly you had just completed a three year sentence some two months earlier for a series of arsons, that sentence having been imposed upon you by Judge Cohen and I will be referring to her judgment again in a moment.

8As I have indicated, you pleaded guilty at the committal so there was an avoidance of that and my recollection is that there was no further cross-examination of the victim until trial.

9Another aspect which has not assisted you is that because the matter ran as a trial I had the opportunity of actually hearing the victim give her evidence as to what occurred and I found her a compelling witness and her fear and residual damage caused by you were in my view palpable.

10In any event, the circumstances are as I have indicated already and I am not going to go into it word for word, it would be an impossible scenario, I will just give the general basics of it as they appeared during the course of the trial and perhaps refer to it in a bit more detail to the actual offending itself.

11You, a woman known as Lin[1], and the victim who I will simply refer to as Isabelle[2], were residing in an effectively shared house in Hoppers Crossing[3].  On this particular night Ms Lin, who had quite severe mental difficulties, got it into her head that Isabelle had stolen money off her.

[1] A pseudonym.

[2] A pseudonym.

[3] Location anonymised.

12Isabelle, as I understand it, had only been living at the premises for a relatively short time.  You had been there for longer than that and in fact you had only been out of gaol, as I think I might have just indicated, for a couple of months.

13The situation between Lin and Isabelle became physical.  There are different versions as to when you became involved in all this and I do not accept your versions you gave in court, that it was much later, I think it was earlier than that, but I am certainly not making findings as to that in any way, shape or form beyond reasonable doubt.

14The fact of the matter is that the dispute had nothing to do with you, and whilst it was probably very unpleasant it was, as I accept as your counsel pointed out, a chaotic circumstance in an effectively boarding house.

15However, once you became involved the criminality of what was occurring became much more significant.  There had clearly been violence and certainly an attack upon Isabelle earlier on, and at some point in time she left the premises and clearly in my view she had been assaulted by that stage.

16You then left the premises as became clear on the CCTV footage, and also in your record of interview, and you brought her back.  It was after that that as I said the real criminality in this situation came into play.

17Isabelle found herself wedged into a cupboard, her clothes were removed from her, she may have taken off her top voluntarily, it may have been cut off, I do not know.  Her trousers were I think cut off and she had no underwear on.

18Accordingly she was in a totally vulnerable position, stuck in the cupboard with two assailants effectively, and would have been feeling, as she said herself, terrified and humiliated.

19She was repetitively asked for the money and denied that she had it.  You then, having found a box cutter in her room I am told, but I struggle to believe that, then proceeded to threaten her.  You cut her legs.  I have the sentencing remarks of Judge Gaynor who sentenced the co-accused who said lacerations.

20I think one does not get a full understanding of the degree of that assault until one looks at the photograph of her legs.  The cuts are long and some of them at least long and drawn out, one going from the hip to the knee.  It is a severe attack indeed.

21They were not classified as serious injuries and I do not treat them as such.  Unfortunately they were not stitched and the victim impact statement which I will refer to again in a moment indicates that Isabelle has been left with permanent scarring, and therefore a permanent reminder of the ordeal that she went through that night.

22Those wounds clearly indicate that that assault in an endeavour to get her to own up to money that she on my understanding just did not have, was a prolonged, considered and - I am not quite sure what the word is - calculated act of torture to try and get money that was not even yours.

23When that failed you then went to the kitchen and got a kitchen glove.  You then came back and she was threatened again and told that you were going to internally search her, and when you were going to do that she was told that if she kicked or moved or did not open her legs she would in fact be cut open.

24It is clear from what had occurred earlier that would have been a terrifying threat indeed and I make it clear again that is not the evidence she gave in the trial, it is evidence that was given previously.  It does not aggravate the situation from your point of view, it just puts it into a circumstance of how overall terrifying this must have been.

25In any event, you penetrated her with the gloved hand.  During this period of time there were derogatory remarks being made to her.  You found nothing and at one point you said that you could feel something and there were various conversations between you and the co-accused. There is no doubt that the co-accused was if not egging you on, certainly agreeing with what you were doing.

26At one point in time, this is the sworn evidence before me of Isabelle, she turned around and looked at you and you appeared to be enjoying yourself.  All this went on for some period of time.  Ultimately you went to bed.  Your partner at that time, was in a somewhat dubious position in all of this, there was as I understand it from memory in the record of interview of the co-accused, she was present throughout, but again that does not change the situation.

27There was a very mysterious man who is now dead as I understand it who seemed to float in and out of all this, but you then told - after going to bed you then told her that - that is Isabelle - that she better be gone the next morning.

28I accept in your confession that you were concerned about least one of the cuts being so long and so deep, and you checked her out a couple of times during the night.  In any event, Lin finally rang the police in the morning and upon being spoken to by them, the story came out as to what had occurred.

29You were then interviewed and you made the full and convincing confession that I have referred to.  I indicated to the jury at the time that the way in which you were answering was clearly a person in my view, and subsequently proved correct, who had autism and they were to take that against you, but the detail of the confession and the knowledge of where box cutters were hidden and all that sort of thing clearly supports the view that that confession was correct.

30Then of course a trial was run and I sentence you on the basis that Isabelle, it was a bit hard to work out exactly what was being put to her, but that you were not responsible for this and were hardly present.  That is clearly not so.

31The offending has to be regarded as extremely serious in my view.  Of course the application of general and specific deterrence in the normal course of events, denunciation, appropriate punishment and public protection.  There were a number of matters put on your behalf and we had significant discussions ably put by your counsel as to how I should interpret all this material.

32The 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.

33But 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.  There was also the discussion with your counsel as to whether the penetration not being for sexual purposes, makes it any less in terms of moral culpability.

34I think there is a view that a sexual penetration for the purpose of trying to get money that was not even yours would tend to make it worse.  This is the only motive in that is greed.  I am not buying into that at all and I am not going to say whether it being not of a sexual nature lessens or increases the culpability in the seriousness of the offence involved.

35The rape is a standard sentence offence which carries ten years and again this was discussed during the course of your plea.  I know as I look at the objective seriousness of the matter, I know that the standard sentence being ten years, that is simply a legislative guideline, it does not interfere with my instinctive synthesis and I am aware of the other principles involved, and I obviously take that into account in the appropriate way.

36Insofar as objective seriousness is concerned there is a number of factors which I think go against you.  One, obviously it is a rape.  The situation is that the whole process was drawn out and I have got to be very, very careful not to engage in double punishment for the two offences.

37In some senses it was gratuitous.  You were endeavouring to get money which I suspect did not even exist, back, which was not even yours, and had nothing to do with you.  The exercise was degrading for the victim and was an exercise I have got no doubt by you of control and power over another person, and again it was done in company and those matters all add to the objective seriousness of it.

38On the other hand it is a situation where I accept your counsel's submissions it all occurred in a very strange set of circumstances.  I have to be careful to avoid double punishment, and were it not for the cutting and the other matters surrounding the actual rape, I probably would not take as serious a view as I do of it.

39In those circumstances I am prepared to find it is of a lower than medium level of seriousness, but the problem you then have is of course that you pleaded not guilty and ran a trial.

40You gave evidence during the course of the trial and for a number of reasons I found it, as did the jury obviously, totally implausible.  Your basis for making a false confession as you claimed in that evidence was that you did not want to lag or give up anybody, and as within a couple of questions it was pointed out by the prosecutor, you being experienced with the legal system knew that all you had to do was go 'no comment' to achieve that effect, rather than confess to something which you acknowledged in the record of interview was going to cost you ten years in prison.

41I have read the victim impact statement and it clearly indicates that dreadful experience that this lady had.  She says in that victim impact statement, 'I have a few long scars on my legs.  I have a scar from the box cutter on my leg that actually did - it took a while to heal.  It wasn't stitched and so the scar is a reminder and every time I look at it it's a reminder as to what happened'.

42She said, 'It makes me feel like I'm never going to escape what happened'.  She was terrified after the event, and was on the streets for a while, and had really bad anxiety and a whole lot of other effects that one would not be surprised occurring.

43I am aware obviously that in these circumstances she probably had a fairly difficult existence anyway.  She was a significant drug user and there is a milieu in which all of this took place, but I do very much take that victim impact statement into account.

44As I already indicated I saw and heard her give evidence and she was terrified.  In all those circumstances a custodial sentence, and of very significant proportions in my view, is inevitable.  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.

45I then look at matters personal to you.  Firstly, at the time it occurred you were still 24 or 25, still a relatively young woman.  You do have the prior and it would appear that this is the first time you had been in custody, though I do not know if you had done remand before or not, but you did have this suspended sentence from Queensland.

46I think what I will do, as I indicated to counsel, rather than go through the number of medical reports that  I have got, and I perhaps should indicate for the transcript I have Judge Cohen's sentencing remarks, I have the sentencing remarks of Judge Gaynor, I have a report from Mr Simmons, I have a report from St Vincent's Hospital, I have various references from various people.

47In Judge Cohen's report there is reference to a report from a psychiatrist as I understand she is, a Dr Zimmerman.  I have a number of references from various support groups.  I have a reference from Mr Peter Esposito, or a testimonial probably might be a better way of describing it.

48I have the written submissions of your counsel and various other documents, all of those of course are taken into account.  However, you had only been out of custody for a couple of months and I think in those circumstances Judge Cohen's history is probably ample.

49I might indicate that you were ultimately released on bail after a significant period of time and prior to your being remanded after being found guilty by the jury I accept that you have made efforts to rehabilitate.  As I understand it there is nothing pending and there was no offending during that period of time.

50You have expressed a desire to undertake various courses and you have expressed a desire to work in advocacy for prisoners, and you have shown it I think that you are certainly not an unintelligent woman and I will refer back to that again in a moment.

51At the time Judge Cohen sentenced you you were 21. She said that you were born and grew up in Queensland and had a very difficult childhood.  There was information obtained from various files.  You had been examined by
Dr Nina Zimmerman, a consultant psychiatrist, and she prepared a report and that was tendered before Judge Cohen.

52The judge accepted from that report that you were removed from your mother's care at six months of age due to neglect.  You were brought up by your father and his new partner in a household where they applied measures that they called, 'Strict discipline', that description, and your counsel ensured me this is correct, involved both physical and emotional abuse.

53The department received reports about you when you were about five or seven.  You received injuries which had apparently been sustained at the hands of your father and stepmother, and the disciplinary measures that had been used on you were described by Her Honour as, 'Appalling'.

54At nine you were referred to child and youth mental health for assessment for anger, anxiety and behavioural issues.  At 15 you were reported for aggressive behaviour at school and I note from other material that when you were very young there were strange behavioural things of stopping and staring and matters like that which are not referred to by Her Honour, but which I am now aware of.

55You were commenced on Risperidone to try and settle you down, but you were still displaying behaviour likely to isolate you from other children.  When you were 17 it appears that you may have been hit over the head by your father, rendering you unconscious on a couple of occasions.

56You were reported as having developmental delays and had been engaging in minor self-harming.  I accept that subsequent to that age there has been attempts at much more serious self-harming than that.

57Those hospital records indicate, and I accept this, on further material that has been provided to me by Ms Cannon that you have been diagnosed with a borderline personality disorder, post-traumatic disorder, and the overwhelming consensus from those earlier hospital notes, if that is a proper description, seems to be in favour of a borderline personality disorder.

58You told Dame Phyllis Frost at that time that you had been diagnosed as being on the spectrum and Judge Cohen said that was not clear whether that had been formally assessed.  I am now aware that in fact it was formally assessed and that you are on the spectrum.

59I think it is clear from anybody who hears you speak and who heard you give evidence and watched that record of interview that that is in my view obviously the case.  One of the difficulties about being treated is that you have usually been resistant to it and would always say that you were well and did not require follow up, and that caused problems.

60You have had however more than 80 hospital admissions between 2012 and 2014, a number of involuntary admissions, and a number of voluntary admissions.  You have been treated with anti-psychotics and antidepressants.

61Despite all that you completed Year 12 at school.  I note from what has been tendered before me that in gaol you have been able to complete a significant number of courses which is very much to your credit.

62When you were around about 17 you formed a relationship with another girl which would seem to have been going to help you enormously.  However, she subsequently passed away and I accept that that has had a deleterious effect upon you, bearing in mind in particular your already fragile state.

63You in custody have at various times been put in the psychiatric unit.  There have been times where you have complained of hearing voices.  There has been times you have seemed paranoid and hypervigilant and all those matters fit.

64You also have a condition which involves looseness of your joints and it is very difficult for you then to work and dislocations can occur.  That is what Her Honour found, and in simple terms that is a pretty fair analysis of what the situation is.

65There is of some concern with reports and references that have been tendered later that seem to in my view - and it is not necessarily a criticism of people - not really take into account the drawn out time over which this offending took place, and it is all very well to say that a person with autism does not necessarily understand the social implications of things, but one only has to look at the photograph of those cuts to know that anybody, no matter what their condition, would know that should not be happening.

66There are also reports of employment, and I am sure that those people are genuine in what they say, but I have also got a report from the clinic which has been tendered in November of 2020 that said you could not work consistently in any occupation and lists a whole number of things.

67With the Ehlers-Danios syndrome you have got these easily strained ligaments and muscles that is pointed out and that report says you can work in short term casual roles at times, but this is unpredictable.  That is in no way suggesting that you are not in yourself genuine as to your attempts to rehabilitate and your attempts to work, but I think I have to be a little bit careful about what faith I place in some of the supportive material that was given to me.

68It is a situation where I do regard the cutting of the legs and the rape as different offences.  It is not a situation where someone gets punched to enable a rape to take place, they are both done in different times and for different purposes.

69The cutting is simply to inflict pain and indeed to torture to get an answer, but the rape is a degrading search and penetration of another woman's body. Those are quite separate concepts as far as I am concerned at least.

70One has to be careful in a situation like this where one has seen the victim and read the impact statement and seen all these photographs not to sentence on the basis of emotion. One must take a measured view of it and I have endeavoured to in fact do that, and it is one of the reasons I have taken some time before giving these sentencing remarks.

71I understand that you have good intentions.  I understand that you initially when you were first sentenced found gaol difficult, but this time you would appear to have adapted better.  I am very concerned, as I have discussed with your Counsel, that in your situation of being autistic and needing routine that you could easily become institutionalised, and turn that routine into almost a benefit for you.

72I have certainly seen that happen before and it is to be hoped that it does not happen again.  The prospects of you rehabilitating yourself I think are pretty dubious, despite your best intentions and the risk of you reoffending unless you come to terms with the need for treatment, is certainly moderate and probably verging towards high.

73There has to be an element of community protection involved in all this, but I am certainly not going to impose a sentence that is trying to, 'Keep you off the streets'.  That would be a totally unfair thing to do and I do not intend to do it.

74However having given this, I say this genuinely, anxious consideration, I think that the sentence has to be significant and has to reflect the criminality of it.  Verdins plays a part in all of this and I accept that and to a certain extent I think your counsel is correct.  I do not know that it plays much of a part in the charge of intentional injury, but within the rape I think your difficulties in life would cause you to have less capacity to reason as to the wrongness of what you did, and I take that into account.

75The other matters of Verdins such as harder in gaol and the like, it might have been the first time, but again the concern of institutionalisation would seem to indicate that that is not the case the second time.  You do have medical problems and I accept that.  You clearly have pain and I accept that.

76There is no evidence before me that none of that or that any of that cannot be dealt with adequately in a custodial environment, so they are the overall circumstances in which you then fall to be sentenced and accordingly on Charge 1, of intentional injury, three years.

77On Charge 2, of rape, seven years.  I direct that one and a half years of the sentence on Charge 1 is to be made cumulative on the sentence on Charge 2, which gives a total effective sentence of eight and a half years.

78I direct that you serve a minimum term of six years before becoming eligible for parole and I direct that 709 days be reckoned as having been served under this sentence.

79There is no other orders I need to make anybody?

80MR PICKERING:  No, Your Honour.

81HIS HONOUR:  What we will do, Ms Cannon, if you want to talk to your client I will just leave the Bench and we shut it down except for you if you want to.  It is up to you, and you can talk to my tipstaff.

82MS CANNON:  Thank you, Your Honour.

83HIS HONOUR:  I will leave the Bench.  You do not have to answer me, just tell my tipstaff.

84In regards to yesterday’s sentencing remarks in the matter of Chapman, His Honour has realised that there were two matters he was taking into account and missed reading from his notes

85One was the time in custody under COVID restrictions and the lack of visits, fear of contagion etc and secondly that the accused had formed a relationship with the accompanying offer of stable accommodation with her partner’s parents.

86He proposes to add this to his sentencing remarks when they are returned for revision as an addendum.

87He thought it best to advise you of that course now.

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