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[2026] NSWCCA 113
Court of Criminal Appeal (NSW)
2026-07-24
Price AJA at [1]; Cavanagh J at [42]; Richardson J at [46]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Chapman v R [2026] NSWCCA 113
Hearing dates: 6 July 2026
Date of orders: 24 July 2026
Decision date: 24 July 2026
Before: Price AJA at [1];
Cavanagh J at [42];
Richardson J at [46]
Decision: (1) Extend the time for leave to appeal.
(2) Grant leave to appeal.
(3) Dismiss the appeal.
Catchwords: CRIME – appeals – appeal against sentence – sexual intercourse without consent – where the applicant accepted that the complainant was asleep during commencement of the sexual intercourse in the agreed facts – whether reasonably open to sentencing judge to find beyond reasonable doubt that the applicant had actual knowledge the victim was asleep at the commencement of the sexual intercourse – where sentencing judge rejected applicant’s out of court statements – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 61KC, 91P
Criminal Appeal Act 1912 (NSW), ss 5, 10
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5
Cases Cited: Fisher v R [2021] NSWCCA 91
Fisher v R [2026] NSWCCA 27
Hancock v R [2025] NSWCCA 213
House v The King (1936) 55 CLR 499; [1936] HCA 40
R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Category: Principal judgment
Parties: Ricky Joseph Chapman (Applicant)
Rex (Respondent)
Representation: Counsel:
M Valentin (Applicant)
F Sullivan (Respondent)
Solicitors:
WM Lloyd & Associates (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2023/338812
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the publication of any matter which could identify the victim and the victim’s children is prohibited.
PRICE AJA: The applicant, Ricky Joseph Chapman, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed on him by Bourke SC DCJ (“the judge”) in the District Court at Newcastle on 13 March 2025.
The applicant had pleaded guilty to the following offences:
an offence of sexual intercourse without consent between 1 January 2012 and 31 December 2013, contrary to s 61I of the Crimes Act 1900 (NSW) (sequence 1) (“the offence”), which carries a maximum penalty of 14 years imprisonment with a standard non-parole period (“SNPP”) of 7 years; and
an offence of sexual touching without consent between 1 January 2019 and 1 April 2019, contrary to s 61KC(a) of the Crimes Act (sequence 7), which carries a maximum penalty of 5 years imprisonment (no SNPP).
The applicant asked the judge to take into account on sentence a further two offences, namely, intentionally recording an intimate image without consent between 1 January 2018 and 31 December 2019, contrary to s 91P(1) of the Crimes Act, which carries a maximum penalty of 3 years imprisonment and/or 100 penalty units on a Form 1.
The applicant was sentenced by the judge to an aggregate term of imprisonment of 3 years and 6 months with a non-parole period (“NPP”) of 2 years and 3 months, commencing on 17 September 2024 and expiring on 16 June 2028. The applicant is eligible for release to parole on 16 December 2026.
Before imposing the overall sentence, the judge had indicated a sentence of 3 years and 6 months for the offence and a sentence of 15 months imprisonment for the sequence 7 and Form 1 offences. His Honour had discounted the indicative sentences by 25% for the utilitarian value of the early pleas of guilty. His Honour also found special circumstances on the basis of the applicant’s mental health, first experience in prison and the need for a reasonable period of supervision on parole.
The notice of appeal identifies two grounds of appeal:
Ground 1: The judge erred in finding that the applicant knew that the victim was asleep; and
Ground 2: That the sentence imposed by his Honour was unreasonable or plainly unjust.
The applicant requires an extension of time as the appeal was filed out of time: s 10(1)(b) of the Criminal Appeal Act; r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). An affidavit of the applicant’s solicitor, Matthew Lloyd, sworn on 7 May 2026 provides an adequate explanation for the delay and an extension of time should be granted.
The focus of the appeal is the factual finding made by the judge in respect of the offence, that the applicant had actual knowledge that the victim was asleep and not consenting for the entirety of the sexual intercourse. It was the applicant’s case at the sentencing hearing that when the sexual intercourse had commenced the applicant was acting under the mistaken but honest belief that the victim was awake and consenting, although he continued to engage in the sexual intercourse with the victim after realising she was asleep. The applicant’s contention is that his Honour’s finding of actual knowledge beyond reasonable doubt was not reasonably open on the evidence and House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House v The King”) error has been established.
Although there are two grounds of appeal, the applicant accepts that if he fails to establish Ground 1, then Ground 2 must fail. As the appeal is confined to the offence, it is not necessary to detail the facts of the sequence 7 and the Form 1 offences. Furthermore, I will confine my recitation of the agreed facts and the judge’s remarks on sentence when considering Ground 1 to the offence.
“3. The victim and [the applicant] met on an online dating website … in around October 2011. …
- Around December 2011 the victim and [the applicant] commenced an intimate relationship. [The applicant] would normally come over to the victim’s house where she was living with her son JT and her mother. Sometimes [the applicant] would stay the night and other times he would go home. [The applicant] worked shift work and they lived separately.
Sequence 1 – Sexual intercourse without consent
- Sometime in 2012 or 2013 the victim stayed the night at [the applicant’s] house ... [s]he stayed there with [JT].
- On this occasion the victim slept in [the applicant’s] room. JT slept on a cot mattress on the floor, next to the victim’s side of the bed. The victim wore a singlet top and underpants to bed. The victim was woken by [the applicant] shaking her shoulder with his hands. He said, ‘[the victim], [the victim]’ as he shook her. [The applicant] said, ‘[the victim], [the victim], you need to have a shower I got carried away.’ [The applicant] was naked.
- Whilst laying on the bed, the victim noticed that her singlet top was pulled up and her breasts were exposed. Her underwear was no longer on. She felt something wet on her thighs and when she touched her thighs, she realised it was ejaculate. The victim sat up in bed and saw that there was a large amount of ejaculate on her vagina and thighs.
- The victim stood up, went to the ensuite and had a shower. [The applicant] followed her to the shower. The victim said words to the effect of, ‘[i]t’s ok just stop.’ The victim said this because she was confused and worried. [The applicant] waited outside the door as the victim showered. He was following her and pacing around.
- [The victim] finished in the shower, dried herself off, changed into other clothes and went back to bed. The victim felt confused and concerned. She had not given [the applicant] consent to have sex with her and was not aware it was happening because she was asleep.
- The victim was not on any contraception at the time, and she was concerned about getting pregnant.
- The relationship continued as usual and they never spoke about that incident. The victim never spoke to [the applicant] about it because she did not think he would do it again.
…
- [The applicant] was asked whether he had ever had sex with the victim without her knowing, he said, ‘[s]ort of, sort of.’ When asked what he meant [the applicant] said in around 2013 … the victim had stayed the night. [The applicant] said he woke up in the middle of the night and he and the victim were naked in bed. [The applicant] kissed the victim and he thought she was half dozing and she half responded with ‘mmm’. [The applicant] climbed on top of the victim and commenced having sex with her. [The applicant] said just before he orgasmed, he realised the victim was actually asleep. [The applicant] said he finished and then he woke the victim up. [The applicant] said that he remembered the incident because he felt so guilty about it. [The applicant] said that he ejaculated inside the victim.”
“In relation to the incident resulting in [the applicant] being charged with sexual intercourse without consent, [the applicant] acknowledged that occurred in the first year of their relationship. He maintained that he thought the victim was awake, as he perceived she responded to him when he initially kissed her. [The applicant] said he then had intercourse with the victim, but realised soon afterwards that she had been asleep. [The applicant] stated in response he ‘felt bad for days’.”
The applicant did not give evidence before the judge, however a witness gave character evidence in his case.
The applicant’s counsel submitted that the statement made to police in par 38 of the agreed facts (see [10] above) was not consistent with someone who deliberately had sex with another whilst they were asleep. The applicant’s counsel put to the judge that “it is entirely consistent … with someone who proceeded initially on an erroneous basis as he says, he said he heard a noise, that ‘mmm’, and thought that she might have been amorous towards him and proceeded on that basis”: Tcpt, 12 March 2025, p 11(15-20). The applicant’s counsel said that the applicant would be entitled to a “very slight reduction” in moral culpability as “for a very brief of time he was not acting in a deliberate or predatorial way …”: Tcpt, 12 March 2025, p 14(28-32).
The Crown, on the other hand, contended that the judge should infer from the agreed facts that the applicant must have known that the victim was asleep for the duration of the offending and accordingly had actual knowledge that she was not consenting throughout the incident. The Crown submitted that the judge should reject the statements made to police in par 38 of the agreed facts and the statement made to Mr Borkowski (see [11] above). The Crown accepted it bore the onus of proving the applicant’s knowledge beyond reasonable doubt.
“[9] The facts of [the offence] are, in essence, as follows:
[10] Some time in either 2012 of 2013, the victim and her son were staying over at [the applicant’s] home. The victim went to bed wearing singlet top and underpants with her young son sleeping on a mattress on the floor. During the night the victim was awoken by [the applicant] shaking her and saying her name. He also said, ‘[y]ou need to have a shower, I got carried away.’
[11] The victim noticed that [the applicant] was naked and that her underpants had been removed and her top pulled up. She also felt a wet sensation on her thighs and vaginal area which she discovered to be ejaculate. The victim had not given any consent for [the applicant] to have sexual intercourse with her because, as the agreed facts note, she was asleep.
[12] The victim got up and had a shower, with [the applicant] following her to the bathroom. The victim said to [the applicant], ‘[i]t’s okay, just stop’ and [the applicant] waited outside while the victim showered and was pacing and following her around.
[13] After showering, the victim, who felt confused and concerned, changed into other clothes and returned to bed. The victim was not using contraception at the time and was concerned about pregnancy.
[14] After this incident, the relationship continued as usual and [the applicant] and victim never spoke about the incident, the victim thinking that [the applicant] would not do it again.”
“[7] The offences before the court occurred in the course of an ongoing relationship between [the applicant] and the victim which commenced around October 2011. The victim, who is about seven years younger than [the applicant], already had a son from a prior relationship but subsequently went on to have two more children with [the applicant].
[8] The relationship was one where [the applicant] and the victim generally lived separately but where, initially at least, [the applicant] would visit the victim at the house where she lived with her mother and son and [the applicant] would sometimes stay the night.”
“[41] Commencing with [the offence], I make the following observations and findings: firstly, sexual intercourse offences can be committed in a variety of ways, including, as in this case, by penile/vaginal intercourse. There is no set hierarchy of seriousness when it comes to such offences. Rather, each case must be assessed according to its particular circumstances.
[42] In this case, the sexual intercourse involved penile/vaginal intercourse to the point where [the applicant] ejaculated inside the victim’s vagina. He was not wearing a condom, and so the victim suffered the degradation not only of the physical act but of [the applicant’s] semen being deposited in and on her body. This was not only degrading but also involved the risk of unwanted pregnancy, a matter about which the victim was concerned.
[43] It was accepted by [the applicant] in the sentencing hearing yesterday that, based on the agreed facts, the victim was, in fact, asleep for the duration of the sexual intercourse. However, it was argued on behalf of [the applicant] that although he continued to engage in sexual intercourse with the victim after realising she was asleep, the court would accept that when the sexual intercourse commenced [the applicant] was acting under the mistaken but honest belief that she was awake and consenting to the sexual intercourse.
[44] In support of this argument, counsel for [the applicant] relied in part on what [the applicant] told police in 2023. In his interview and after being asked if he had ever had sex with the victim without her knowing, he had said, ‘[s]ort of, sort of’ and referred to an incident around 2013, where he and the victim were naked in bed. He said that on this occasion he had kissed the victim and that he thought she was ‘half dozing’ and that she had responded to him with ‘[m]mm’ and that it was after this that he climbed on top of her and commenced having sex with her. He told police that he realised the victim was asleep ‘just before he orgasmed’ and that he had then woken the victim up.
[45] Counsel for [the applicant] also pointed to the words attributed to [the applicant] in the psychological report of Jason Borkowski. According to the psychologist, [the applicant] maintained that he thought the victim was awake as he perceived that she responded to him when he initially kissed her. Counsel for [the applicant] also pointed to the agreed fact that [the applicant] had, immediately after the sexual intercourse, woken the victim up and told her what he had done. It was argued that this provided further support for the suggestion that he had a genuine but honest belief at the start of the sexual intercourse that the victim was awake.
[46] Counsel submitted also that the fact that these events took place in a darkened room provided some further support for [the applicant’s] claim that he believed she had been awake at the commencement of the sexual intercourse.
[47] The Crown submitted that I would not accept [the applicant’s] argument. However, it also accepted that the Crown bears the onus of proving beyond reasonable doubt the state of [the applicant’s] knowledge at the time that sexual intercourse commenced.
[48] Clearly, the offence will be rendered more serious if I was to find that [the applicant] knew the victim was asleep when he commenced to have sexual intercourse with her. It will be rendered less serious, to some degree, if there is a reasonable possibility that when the sexual intercourse commenced [the applicant] had an honest belief that the victim was awake.
[49] The issue is one which is of particular relevance to [the applicant’s] moral culpability or blameworthiness. However, if I am to proceed on the basis that the offending conduct commenced at a time when [the applicant] knew the victim was asleep, it is necessary, as the Crown concedes, that I be satisfied about that beyond reasonable doubt.
[50] In making that determination, I have considered all of the evidence and the submissions made by the parties. There is no doubt that the victim was, in fact, asleep for the duration of the sexual intercourse. That is an agreed fact which [the applicant] has accepted. However, he argues that I would not be satisfied beyond reasonable doubt that he had actual knowledge that she was asleep at the start of the sexual intercourse. As I have said, the Crown points to the contrary position and says that the court would reject [the applicant’s] assertion.
[51] There are a number of aspects to be considered about [the applicant’s] argument. Firstly, none of his claims are supported by evidence on oath. Rather, the suggestions are second hand in the form of things that he said to police and then to a psychologist, which are incapable of being tested by cross-examination.
[52] Secondly, [the applicant’s] claim is, on proper analysis, not merely a claim that the victim was awake but that she was awake and consenting to sexual intercourse. I place particular emphasis on those words ‘and consenting to sexual intercourse’.
[53] In my view, it is stretching credibility and the limits of common sense too far to accept that [the applicant] could have honestly and genuinely been mistaken about whether or not his partner was both awake and consenting to penile/vaginal sexual intercourse. Such an intimate and physically invasive act is one that requires communication and free and voluntary agreement.
[54] In circumstances where the agreed facts clearly state that the victim ‘had not given [the applicant] consent to have sex with her and was not aware it was happening because she was asleep’, it is difficult to accept [the applicant’s] untested assertions of believing she was awake when he commenced intercourse with her.
[55] Furthermore, there is the agreed fact that, ‘[t]he victim was not on any contraception at the time and she was concerned about getting pregnant’. In my view, this concern of the victim and the fact that [the applicant] did not use a condom provides further support for the conclusion that [the applicant’s] claim that the victim was awake and consenting should not be accepted. It is another matter which renders improbable [the applicant’s] claim that the victim was awake and consenting because it is improbable that [the applicant] would not have known of the victim’s concern about the risk of pregnancy and would have genuinely believed that her sleeping body had provided him with consent.
[56] In addition, there is the agreed fact that when the victim woke up she noticed that her singlet top had been pulled up and her underwear removed. It follows from this that it must have been [the applicant] who removed the victim’s clothes before sexually assaulting her. The fact that it was [the applicant] who engaged in this action is another matter that points to the implausibility of his claim that the victim was awake.
[57] There are also, as the Crown submitted, differences in the version given by [the applicant] to police, namely that he realised she was asleep ‘just before he orgasmed’ when compared with the version given to the psychologist that he ‘realised soon afterwards’.
[58] In addition, there is the rather perplexing and equivocal response by [the applicant] when he answered with the words, ‘[s]ort of, sort of’, to a police question of whether he had ever had sex with the victim without her knowledge.
[59] I have considered the submissions on behalf of [the applicant] but, in my view, they are implausible and I reject them. Rather, I am satisfied beyond reasonable doubt that the sexual intercourse involved [the applicant] removing the victim’s underpants and lifting her top and then having/penile vaginal intercourse with her to ejaculation while actually knowing that she was asleep.”
“[60] In [Fisher], in relation to the circumstances of that case, Adamson J, as her Honour then was, commented at [242] to the following effect:
‘To initiate sexual intercourse with a stranger who is asleep is a particularly serious violation. The complainant who was unconscious, having fallen asleep, fully clothed, in a bed with the permission of its owner was particularly vulnerable. I accept the Crown’s submission that the objective seriousness of count 1 is just below mid-range. Although there were no threats of violence, there did not need to be because the complainant, being unconscious at the outset, was in no position to resist or defend herself’.”
The judge was unable to determine the precise length of time during which the sexual intercourse took place, however, his Honour said that it went on for some time and it was not brief. His Honour found that the applicant’s moral culpability for the offence was high and assessed the offence as being around the mid-range of objective seriousness.
When turning to the question of remorse, his Honour referred to Mr Borkowski’s report which stated that the applicant had accepted responsibility for his actions and said (ROS at [87]):
“Turning then to questions of remorse. The psychologist says that [the applicant] accepted responsibility for his actions in committing the act of sexual intercourse and said that he felt bad for days afterwards. While this acknowledgement is entitled to some weight, its value is diminished by reason of [the applicant’s] claim, which I have rejected, that he honestly thought the victim was awake at the commencement of the sexual act.”
In written and oral submissions, the applicant’s counsel, Mr Valentin, informed the Court that the appeal was not focussed on whether or not the judge was within his rights to accept or reject the applicant’s out of court statements made to Mr Borkowski and to the police. The applicant’s contention was that there was no reasonable basis for the judge to find that he was aware from the commencement of the sexual intercourse that the victim was asleep and was not consenting and there was no evidence before the judge upon which his Honour could be satisfied of the applicant’s knowledge beyond reasonable doubt.
Mr Valentin contended that in circumstances where the victim was not aware as to the commencement, or length, of any sexual intercourse and that there was no other evidence that clearly defined when the sexual intercourse commenced or the circumstances in which it commenced there was nothing available to the judge to reject the applicant’s out of court statements and his Honour’s findings were not reasonably open on the evidence. Mr Valentin submitted that House v The King error had been established.
In oral submissions, Mr Valentin referred to the applicant’s assertion in the out of court statement to police in par 38 of the agreed facts, that he said upon commencing sexual intercourse he heard the word “mmm”, and that he proceeded on the basis of hearing “mmm”. Mr Valentin further referred to the applicant’s answer, “[s]ort of, sort of” in par 38. Mr Valentin submitted that these are two issues which should be “viewed within a lens of the entirety of the circumstances that relate to this offending”, which “occurred in the context of a long term relationship between the victim and the applicant”: Tcpt, 6 July 2026, p 5(25-32).
Mr Valentin submitted that the out of court statements made by the applicant were all indicative of a person who recklessly commenced sexual intercourse not knowing that the victim did not consent. It was upon realising she was asleep at a later stage that the applicant’s criminality turned from recklessness to actual knowledge. Mr Valentin contended there was no material to counter the propositions put by the applicant which, he said, “seemed the most logical choice open to his Honour”: Tcpt, 6 July 2026, p 7(14-15).
Mr Valentin submitted that the judge’s finding that the applicant knew that the victim was asleep was a material fact that directed the sentencing outcome. The assessment of the gravity of the offending and the applicant’s moral culpability may have been more favourable, and the judge may have placed more emphasis on the applicant’s remorse, if his Honour had accepted the applicant’s case.
Mr Valentin said that if the applicant was successful on Ground 1, there “would be a modest reduction in moral culpability, and on resentence would be reflected in the [NPP]”: Tcpt, 6 July 2026, p 14(41-45).
The Crown submitted that it was reasonably open to the judge to reject the applicant’s out of court statements given to Mr Borkowski and to the police. The Crown further argued that after rejecting the applicant’s account, it was reasonably open to his Honour to find beyond reasonable doubt that the applicant had actual knowledge that the victim was asleep during the entire incident.
The Crown placed emphasis on the agreed facts that the victim was asleep during the entire incident and the victim noticed that her singlet top was pulled up and her underwear was no longer on. The Crown submitted that the only rational inference was that the applicant had removed the victim’s clothing without the victim being an active participant in it. The Crown further pointed to the agreed facts that the victim was not using any contraception and was concerned about getting pregnant.
As to Ground 2, the Crown referred to the applicant’s position that it was only if Ground 1 is upheld that the resulting sentence was manifestly excessive. The Crown contended, in that event, the applicant had not established the aggregate sentence was neither unreasonable nor plainly unjust and Ground 2 should be rejected.
Although Mr Valentin said that the appeal was not focussed on the judge’s rejection of the applicant’s out of court statements, he submitted that there was nothing available to his Honour to reject those statements.
Before proceeding further, I make the observation that this is a case where it would have been appropriate for the applicant to have given evidence. As was stated by the majority of the High Court in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [25] (Gleeson CJ, Gaudron, Hayne and Callinan JJ):
“… [I]t will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say ‘if necessary’ because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.).”
In the sentencing proceedings before the judge, the Crown made it clear that the prosecution did not accept the applicant’s out of court statements and there was a real contest as to the findings his Honour should make. It was open to the applicant to give evidence but he did not do so.
It has long been held that the weight to be given to out of court statements is a matter for the sentencing judge, who in the exercise of discretion is not required to accept the truth of them: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59] (Smart AJ), [79] (Spigelman CJ); R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [40]-[41] (Howie J, Levine and Hidden JJ agreeing); Hancock v R [2025] NSWCCA 213 at [35] (Bell CJ, Ward P, Payne JA, N Adams and Yehia JJ) (“Hancock”); see also Fisher v R [2026] NSWCCA 27 at [59].
It is hardly surprising that the judge did not accept what was said by the applicant to police as he stated, “he woke up in the middle of the night and he and the victim were naked in bed”. This was a self-serving untested statement which stood unhappily with the agreed facts in pars 6 and 7, that the victim went to bed wearing a singlet top and underpants and after she was woken by the applicant she noticed she was naked, that her underpants had been removed and her top pulled up. Furthermore, as the Crown pointed out to the judge, the applicant told police he thought she was “half dozing”, whereas he told Mr Borkowski that “the victim was awake”. Another inconsistency was referred to by the judge in his ROS at [57].
The critical question is whether it was reasonably open to the judge, after his Honour rejected the applicant’s out of court statements, to find beyond reasonable doubt that the applicant knew the victim was asleep at the commencement of the sexual intercourse. As the five-judge bench of this Court observed in Hancock at [73] (Bell CJ, Ward P, Payne JA, N Adams and Yehia JJ):
“We accept the Director’s submission that an appropriate and correct test in a sentence appeal to ascertain the existence of a mistake of fact for the purposes of House v The King is to ask whether the finding was reasonably open. If the finding was not ‘reasonably open’, a sentencing judge has mistaken the facts. Ordinarily, this will apply to a finding of primary fact or an inference drawn from a finding of primary fact. In either case, if the sentencing judge has mistaken the facts in the sense that the finding was not ‘reasonably open’ and, if the error is material, House v The King error will have been established.”
Paragraphs 6 to 10 of the agreed facts (see [10] above) are the material upon which the applicant stood to be sentenced. It was accepted by the applicant based on the agreed facts that the victim was asleep for the duration of the sexual intercourse.
The agreed facts which are of particular relevance to the applicant’s knowledge, were that the victim went to bed wearing a singlet top and underpants and after she was woken by the applicant, she noticed that she was naked, her underpants had been removed and her top pulled up with her breasts exposed. She then discovered the applicant’s ejaculate. The only reasonable inference available from these facts is that the applicant removed the victim’s underpants and pulled up her top before commencing sexual intercourse.
There is no reasonable possibility that the applicant would not have been aware the victim was asleep whilst he removed her underpants and pulled up her top. Viewed in combination with the agreed facts that the victim was not on any contraception at the time and was concerned about getting pregnant, it was reasonably open to the judge to find beyond reasonable doubt that the applicant had actual knowledge at the time he commenced the sexual intercourse, that the victim was asleep and did not consent to the sexual intercourse. No House v The King error has been established.
I would dismiss Grounds 1 and 2.
Accordingly, I propose the following orders:
Extend the time for leave to appeal.
Grant leave to appeal.
Dismiss the appeal.
CAVANAGH J: I have had the benefit of reviewing the judgment of Price AJA in draft. I agree with the orders proposed by his Honour for the reasons his Honour sets out.
The difficulty which the applicant faces in respect of ground 1 is that on sentence he relied on out-of-court statements without giving evidence on sentence. There may have been good reason for that but the test on appeal is whether the finding which he wishes to challenge was reasonably open to the sentencing judge: Hancock v R [2025] NSWCCA 213 at [73] (Bell CJ, Ward P, Payne JA, N Adams and Yehia JJ).
Having not accepted the out-of-court statements, the sentencing judge was still required to be satisfied beyond a reasonable doubt that the applicant knew that the victim was asleep. For the reasons identified by Price AJA, there was evidence to support that finding, such that it could not be said that such a finding was not reasonably open.
In circumstances where the applicant had conceded ground 2 (absent success on ground 1), there was no basis for then considering whether the sentence was otherwise manifestly excessive.
RICHARDSON J: I agree with Price AJA.
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Chapman
R
[1936] HCA 40
(1936) 55 CLR 499
(1999) 199 CLR 270