R v Chapman

Facts surrounding the offence

1. On the morning of 2 October 2016, Mr Chapman had been out walking the dog with his mother. When he returned, he spent the rest of the day in his room playing computer games in the dark. His mother went shopping in the afternoon and returned at about 7pm. Mr Chapman was still in his room at that time.
2. Mr Chapman's father had gone out that morning to attend an event at the Whitlam Centre in Liverpool. He arrived home between 7pm and 7.30pm. Mr Chapman's mother had prepared dinner for the family and began calling him to come to the table. Mr Chapman ignored her repeated requests. After his parents started eating, Mr Chapman's mother called out to him again. Mr Chapman came out of his room and said that he would be there in five minutes and that he was participating in an online game that he could not leave. He said, "I'll come when I'm ready". He also said he would eat his dinner cold if necessary.
3. Mr Chapman's parents were becoming increasingly frustrated. Mr Chapman's father said, "You'll be looking for somewhere to rent tomorrow". Mr Chapman's mother asked her husband to disconnect the Internet. She was in the kitchen and heard him say, "He's out. He's looking for a new place to rent tomorrow".
4. Mr Chapman's father went to the family's home office and turned off Mr Chapman's modem. He then went to Mr Chapman's bedroom and tried to remove the cables from his computer. At this time Mr Chapman picked up a knife from his desk and stabbed his father once in the right shoulder causing a deep wound. He removed the knife and left the room. His mother saw him walking from his bedroom down the hallway and back. She heard her husband cry out from Mr Chapman's bedroom. Mr Chapman came into the kitchen carrying the knife and said, "I stabbed him".
5. Mr Chapman's mother ran to the bedroom where she found her husband lying on his back with his feet towards the door. He was in a pool of blood that was becoming larger. He was muttering unintelligibly. While attempting to assist him, she sent Mr Chapman to alert the neighbours and seek emergency assistance. The arrival of the ambulance was delayed. Mr Chapman's father died on the way to Liverpool Hospital.
6. The police arrived at the house at 8.56pm. Mr Chapman immediately told the attending officer that he had stabbed his father. He said that his father had dismantled his computer "and I don't know what happened". He said he did not know where the knife came from and "after I hit him with the knife I put it down". He said he did not remember where.
7. In a later electronically recorded interview, Mr Chapman said that an argument broke out about him coming to dinner, that his father cut off his internet and then "stormed into my room and I picked up a knife and hit him with it". He said that the knife was on the desk in his room. He could not remember what he did then. He said that he ran across to the neighbours and had them call an ambulance.
8. Mr Chapman was taken into custody. He has remained in custody bail refused since then.

Relationship with his father

1. Mr Chapman did not have a close or supportive relationship with his father. He reported that his father was not interested in his problems at school. They had had physical altercations in the past. Mr Chapman's reluctance to seek work or to study and the excessive time that he spent on his computer were sources of tension and conflict.
2. Mr Chapman told his counsellor about his difficult relationship with his father. He scoffed at the suggestion that he could improve their relationship by speaking about issues. Mr Chapman admitted that he would not have cared if his father had become seriously ill.
3. Mr Chapman's mother gave evidence in the sentencing proceedings. She said that Mr Chapman's father "didn't seem interested". She said that sometimes they got on and sometimes they did not. She said that "Stephen was a difficult father". In what became a very sad and emotional piece of evidence in the proceedings, Mr Chapman's mother said that her husband "was not a good father to him". She expressed the opinion that her husband may himself have suffered from Asperger's Syndrome but that he was in denial about it. She thought that there was no emotional bond between them as a result.

Sentencing for manslaughter

1. In R v Van Xuan Nguyen [2005] NSWSC 600 at [21]-[24], Johnson J set out the relevant sentencing principles in the case of the crime of manslaughter. In setting out the paragraphs referred to, I respectfully adopt his Honour's summary: "[21] The maximum penalty prescribed for the offence of manslaughter is imprisonment for 25 years: s 24 Crimes Act 1900. The offence of manslaughter involves the unlawful taking of a human life, and as such it has long been recognised as one of the most dreadful crimes in the criminal calendar: R v Hill (1981) 3 A Crim R 397 at 402. In R v MacDonald (Court of Criminal Appeal, 12 December 1995, BC9501664), the Court (Gleeson CJ, Kirby P and Hunt CJ at CL) said at page 8: 'Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. (See R v Hill (1981) 3 A Crim R 397 at 402.) The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system.' [22] In R v Blacklidge (Court of Criminal Appeal, 12 December 1995, BC9501665), Gleeson CJ (Grove and Ireland JJ agreeing) said at page 4: 'It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.' [23] The importance of denunciation in sentencing for manslaughter has been stressed: R v MacDonald, above, at page 9. Little assistance is to be gained by reference to sentencing statistics which encompass all forms of manslaughter, save so far as they disclose a broad range within which sentences have been passed since their compilation began: R v Mohamad Ali [2005] NSWSC 334 at paragraph 61. [24] A sentence for manslaughter must reflect the seriousness of unlawfully taking the life of another human being and it is not of great moment whether the killing is characterised as coming within any particular head of manslaughter. Rather, it is a question of what sentence is required to reflect the objective facts by way of retribution and denunciation, the subjective circumstances and, if necessary, deterrence: R v Walsh (2004) 142 A Crim R 140 at 149 (paragraph 40); R v Mohamad Ali, above, at paragraph 56."
2. I have taken account of all of these considerations in forming my own conclusions about what is the proper sentence in this matter.

Subjective circumstances

1. As I have already mentioned, Mr Chapman was 20 years of age at the time of this offence and is now 22 years of age. He has no criminal record of any kind. He is not otherwise reported to be a person with any other (non-criminal) history or antecedents suggesting or implying a connection with, or a tendency to engage in, antisocial conduct or violent behaviour. He denied substance abuse and neither drank alcohol nor used drugs.
2. Mr Chapman is now an only child, his older brother having died at birth. He has always lived with his parents. He said he is heterosexual and is attracted to women his own age, but has never had a relationship. He has never had any form of employment, even part time or voluntary, apart from briefly acting as a guard at a model train exhibition, arranged by his father. His parents had encouraged him to look for work.
3. His hobbies included playing the piano (self-taught), reading history and science books, computer gaming and collecting historical items, including weapons.

Mental health

1. Mr Chapman was examined by Dr Olav Nielssen on two occasions. Dr Nielssen reported that Mr Chapman suffered from a depressive illness, an autism spectrum disorder and a possibly emerging psychotic illness. He said this: "The diagnosis of a depressive illness is based on the history of a syndrome of depression reported by Mr Chapman, the information from his mother and in the various medical records, including a history of treatment for depression, and aspects of his presentation during the two interviews. Mr Chapman reported feeling down, anxiety symptoms, withdrawal from company and thoughts of committing suicide. His local doctor made a diagnosis of anxiety and depression and referred Mr Chapman for counselling, and later prescribed antidepressant medication. The counselling notes report the presence of symptoms of depression that had been present for three years, including suicidal thoughts, and described a treatment program of cognitive behaviour therapy. Mr Chapman's mother described him as having very high trait anxiety from an early age, and to have become depressed in the previous year. Mr Chapman appeared quite depressed at the time of the initial interview, although he also expressed his grief at the death of his father. The diagnosis of an autism spectrum disorder is made on the basis of the history of solitary behaviour and discomfort in social situations, the history of some ritualistic activity, his reported preference for being alone, the absence of close friendships or attempts to form sexual relationships, and aspects of his presentation, when he was thought to be restricted in his emotional responses when not distressed. Mr Chapman's father was reported to have been labelled as having Asperger's disorder in early adult life, and was described as having a similar pattern of impaired social skills and restricted range of interests as his son. Mr Chapman appears to have normal language skills and average academic ability, and was able to complete a TAFE course and socialise through online gaming. However, his condition would be considered as a disorder on the basis of the absence of close friendships or other relationships, or any history of employment. The diagnosis of a possible emerging psychotic illness was considered, on the basis of the history of attenuated hallucinations both before his imprisonment and while in custody, and what may have been a subtle decline in social function in the year before his offence. Psychotic illness is sometimes preceded by an autism like presentation, and as many as a quarter of all people diagnosed with autism develop a psychotic illness. However, he did not report symptoms of psychotic illness around the time of the offence or express any apparently delusional beliefs regarding his father, or any reason to harm his father that appeared to stem from an underlying psychotic illness. Hence I do not believe Mr Chapman has the defence of mental illness open to him for this charge. Based on the history provided by Mr Chapman and his mother, it seems that there was a history of conflict between he and his father over the amount of time he spent on online games, and the lack of participation in family life or productive activity. It seems that his father was prone to aggressive outbursts. Another factor may have been the effect of ceasing fluoxetine about a week prior to the offence. Fluoxetine is a long acting selective serotonin reuptake inhibitor (SSRI) type antidepressant, and sudden withdrawal from fluoxetine after a long period of regular use is known to trigger an unpleasant withdrawal syndrome, with flu like symptoms, sleep disturbance, abnormal sensations and cognitive impairment. A further factor in the tragedy was Mr Chapman fascination for medieval artefacts, including the large knife lying on the desk as his father was in the process of dismantling the computer, and the way in which the single stab wound to the back proved fatal. From the information available to me, I believe Mr Chapman would be able to raise the defence of substantial impairment by abnormality of mind. His combination of an autism spectrum disorder and depressive illness is an underlying condition, which together with probable SSRI withdrawal, led to an abnormality of mind at the time of the offence in the form of sudden irrational anger towards his father. I believe his combination of disorders affected his perception of the events, in the sense that he was unable to consider the potential consequences of his actions, including the likely effect of stabbing his father, and also significantly reduced his ability to control his actions. There is no issue as to his fitness for trial. Mr Chapman was assessed to have a comparatively good prognosis and good prospects for rehabilitation, notwithstanding his increased likelihood of developing psychotic illness, which can be treated. He has no previous criminal charges and no history of substance use. He is a solitary person who does not seek interpersonal conflict. He has potential for further education or vocational training. He is likely to require long term treatment for depression, as well as counselling to help him with symptoms of grief and in developing normal social relationships."
2. Professor Greenberg, who did not examine Mr Chapman but who nevertheless provided reports concerning him, did not agree with Dr Nielssen's opinion concerning the possibility of Mr Chapman having a substantial impairment by reason of his abnormality of mind at the relevant time. He gave the following opinion: "Finally, I have been asked to clarify my opinion about Dr Nielssen's opinion that 'his combination' of autistic spectrum disorder, depressive illness and 'probable' SSRI withdrawal led to 'an abnormality of mind at the time of the offence in the form of sudden irrational anger towards his father'. Dr Nielssen was of the opinion that the combination of disorders affected his perception of events in the sense that … he was unable to consider the potential consequences of his actions including the likely effect of stabbing his father, and also significantly reduced his ability to control his actions. In my previous psychiatric report, [I] expressed the view that his likely anger at the time of the offence was not irrational but rather purposeful, goal directed at his father and situational. I further stated that this occurred on a background of a mutually difficult relationship between Mr Chapman and his father in which there is a history of some acrimony. In other words, I do not agree that there was a significant causal connection between his mental condition/s and his offence. … In summary, I am of the view that Mr Chapman's depression, autistic spectrum disorder (and less likely SSRI withdrawal) were likely factors in his offence, but as single disorders or in combination, were not of such significance that they meet the threshold with substantial impairment by abnormality of mind in this individual. In addition, Mr Chapman's personal situation probably was of significance in his offending. In my view, Mr Chapman was likely exposed to some domestic violence as a child, lived in an emotionally charged home environment, had a father who like himself was prone to temper outbursts, and had poor interpersonal/social skills."
3. Both Dr Nielssen and Professor Greenberg agreed that Mr Chapman suffered from depression and that he had an autism spectrum disorder. These conditions require continuing treatment. The evidence also establishes that Mr Chapman had been referred to a psychologist and had been prescribed the antidepressant medication Fluoxetine by his general practitioner prior to the offence. He also attended a number of counselling sessions with a psychologist between January and September 2016.

Objective seriousness and moral culpability

1. Having regard to the foregoing, I consider that Mr Chapman's moral culpability for the death of his father to be low. I also assess the objective seriousness of this offence to be at the low end compared to other offences of this kind. This is referred to later in these remarks.

Deterrence, punishment and retribution

1. It has been contended by the Crown that principles of both general and specific deterrence have a significant role to play in the present case. That submission needs to be analysed having regard to the facts that are agreed.
2. It is conceded that Mr Chapman did not act with an intention to kill, that there was no planning and that the stabbing was opportunistic. Even so, the incident involved some form of dispute between Mr Chapman and his father as previously described. Mr Chapman's response to that dispute was therefore unexpected, unpredictable and manifestly disproportionate to its objective significance. It is in these circumstances somewhat difficult to understand the way in which anything done by Mr Chapman could rationally or logically attract a sentence that might meaningfully operate as some kind of influential statement to the wider community. Put simply, the notion of general deterrence rather anticipates some form of rational or studied consideration of the consequences of acting in a particular way. The impulsive and emotional loss of self-control by Mr Chapman is inconsistent with him having had time for any appreciation of the consequences of his actions when he stabbed his father. I am not convinced that the facts of this case therefore provide much if any scope for the concept of general deterrence. Moreover, there is well known judicial support for the proposition that general deterrence has a less significant role to play in circumstances where the offender is suffering from a mental illness.
3. I am equally satisfied that Mr Chapman will not offend again. There are a number of reasons for this. First, Mr Chapman has no criminal history and has never demonstrated a tendency for violence. The killing of his father is a plainly enigmatic event in an otherwise unremarkable life. Secondly, the nature of the fraught relationship between Mr Chapman and his father was central to what occurred and cannot be duplicated. Thirdly, there are no indications from either of the psychiatrists who examined Mr Chapman that he poses any risk of reoffending. Fourthly, Mr Chapman's immediate and unconditional acceptance of his culpability bespeaks an entirely guileless attitude to what he has done. Finally, both Dr Nielssen and Professor Greenberg agree that Mr Chapman's young age and likely normal intelligence, lack of previous criminal record, lack of history of serious violence and lack of alcohol or substance misuse are positive factors in any risk prediction.
4. The authorities make plain that the taking of a human life is a very serious matter that calls for appropriate denunciation and punishment. As the authorities also make plain, however, the crime of manslaughter covers an infinite range of different circumstances and neither the analysis of previous crimes nor sentencing statistics is of much assistance in determining a proper sentence in individual cases. Significantly in this case my opinion is that Mr Chapman's mother gave evidence before me at his sentencing proceedings that was entirely supportive of her son. That was not an easy thing for her to do having regard to the fact that she has lost her husband as the result of the actions of her son. Moreover, Mrs Bell's evidence unambiguously favoured his return to live with her at the family home. The depth and breadth of her support for Mr Chapman are unique in my experience in a case such as this. I consider Mrs Bell's avowed position to be a very important matter when assessing both the need for retribution and denunciation on behalf of the community, as well as the extent to which Mr Chapman should be punished any more than he has been already.

Guilty plea

1. It is not in dispute that Mr Chapman pleaded guilty at the first available opportunity and is entitled to a discount of 25 percent in those circumstances.

Contrition and remorse

1. Mr Chapman did not give evidence before me. However, he immediately admitted his role in the offence, cooperated with authorities, pleaded guilty at the first opportunity and has not thereafter sought to limit or minimise his role in the events that occurred. Having regard to his acknowledged lack of social skills, I do not treat his decision to say nothing on his own behalf as destructive of the fact that he has otherwise demonstrated he has accepted responsibility for his actions and acknowledged the injury and damage they have caused.

Special circumstances

1. The Crown accepted that this was a case where Mr Chapman would require an extensive period on parole during which he might have access to counselling and support services to ensure adequate and consistent treatment for his mental conditions of autism spectrum disorder and depression and that a finding of special circumstances would be appropriate. In addition, I consider that Mr Chapman's age and the fact that this is his first time in custody are matters of relevance in this context as well. The Crown submitted, however, that any non-parole period ought necessarily to reflect the objective seriousness of the conduct: see, for example, R v Simpson [2001] NSWCCA 534 at [63].

Testimonials

1. Part of the material tendered without objection on Mr Chapman's behalf on sentence included a series of references from a range of people who have known him for all or most of his life. For reasons that will be obvious, I found one of those to be of particular assistance to me in understanding Mr Chapman and his difficult life both before the death of his father and since. Part of that reference is as follows: "My name is [name suppressed], my partner is [Mr Chapman's] uncle, I have known Daniel's mother, Elaine Bell, for well over 40 years and Daniel since his birth ... I saw Daniel regularly up until his grandmother's death in 2012 but kept in touch and have visited Daniel a number of times since his incarceration from 2 October 2016. Prior to my retirement in 2011, I had worked for the Department of Corrective Services as a Welfare Officer in the late 1980s, I was based at Long Bay Correctional Facility. In 1991 I secured a position with the Department of Community Services. I worked as a front line worker and later as an Assistant Manager. I studied law part time and secured a position as a legal officer in 1998. In 2006 I was promoted to Team Leader. During my career in both Departments I worked with families under stress and children who were at risk. I know Daniel feels a very deep sense of remorse, guilt and sadness in relation to the event that led to his father's death. He is well aware of how this tragedy has impacted on his mother and others. I have never seen or heard of any violence perpetrated by Daniel prior to this incident which occurred on 2 October 2016. Daniel had led a quiet life as a young boy, his only outlet playing video and computer games with fellow online gamers from as far back as Primary School and continued into High School, with friends who also were only interested in gaming with each other and online with overseas gamers. Daniel had, in the past, been subject to physical violence by his father on some occasions and he had witnessed his father's violence against his mother at times in the past. I know that his father had problems relating to people and this could be part of Stephen's Asperger's manifestation, as his family, since his death, have now come forward some 10 years after no contact with Stephen, Elaine or Daniel, as after Stephen's parent's death in 1995. In 2016 Stephen's siblings disclosed his family's past history that Stephen had been diagnosed with Asperger's Syndrome… Daniel's mental stability and his recent diagnosed condition of Asperger's Syndrome, will be difficult for Daniel to comprehend and cope with the prison world around him, especially after his bashing when in Long Bay Correctional Facility back on 19 January 2017 by one of the inmates and Daniel was hospitalised for six days in Prince of Wales Hospital as he needed over 12 stitches in his mouth and lip with a broken front top tooth and multiple body bruising causing Daniel to seek protection within the correctional system which he is still placed within now and since 2 June 2017 has been transferred to Parklea Correctional Centre and recently again transferred to Goulburn Correctional Centre on 18 May 2018 but I also believe he still is at high risk from future assaults and this abnormal environment could lead to exacerbate and undermine his precarious mental health."
2. I have been significantly influenced by this insight into Mr Chapman's life and the relationship with his father. The author also brings a very relevant background of experience to her assessment of the extent to which Mr Chapman has suffered within the custodial environment as a result of his particular conditions. I have had significant regard for these opinions in assessing what might be considered to be the community's reasonable expectations of punishment and retribution for this particular offence.
3. It is unnecessary for present purposes to refer to the other references tendered for Mr Chapman.

Determination of sentence

1. The evidence establishes that Mr Chapman has for most of his life survived as an emotionally and socially vulnerable young person in a family in which the relationship with his father was difficult as the result of their likely shared autistic spectrum disorders and where the superadded, and probably related, complication of paternal violence appears inevitably to have exacerbated things further. The apparent contest between Dr Nielssen and Professor Greenberg concerning the question of whether Mr Chapman was suffering from an abnormality of the mind which affected his capacity to understand events, or judge whether his actions were right or wrong, or to control himself, is for obvious reasons in the present case largely beside the point. That is because Mr Chapman stands to be sentenced upon the basis of his accepted plea of guilty to manslaughter: he is not charged with murder. I am satisfied that Mr Chapman was unable to control himself in what was a momentary lapse that resulted from accumulated frustrations over many years, associated in particular with his autism spectrum disorder, SSRI withdrawal and diagnosed depressive illness. I am satisfied that Mr Chapman's moral culpability is significantly reduced because of that fact. In this respect I have specifically adverted to what was said by McClellan CJ at CL in Director of Public Prosecutions v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] and Simpson JA in Aslan v R [2014] NSWCCA 114 at [33]-[35].
2. I am satisfied on the balance of probabilities that Mr Chapman's mental health contributed to the commission of the offence in a material way. There is adequate expert evidence to this effect. For example, quite apart from his written reports, Dr Nielssen was cross-examined on this topic. An example of this is as follows: "Q. How do you say that his disorder substantially affected his ability to perceive what was happening on the night? A. Well, exactly as I just said, that a depressed outlook, the agitation associated with withdrawal from SSRI medication and the ritualistic behaviour of people with these mild autistic spectrum disorders caused him to view the events in a more catastrophic way than another person, so that's the way. Q. Would it also be fair to say another way of describing what you just said is he overreacted to the situation? A. It's a pretty extreme overreaction and it's made worse by his underlying disorders. Q. Doctor, do you not allow for the possibility that what happened on that night happened because he was angry at his father, he acted opportunistically and then obviously regretted what had happened, but it wasn't as a result of his Autism Spectrum Disorder? A. No, that's not my opinion. My opinion is that his disorders contributed to the overreaction."
3. I am also satisfied that any custodial sentence will weigh more heavily upon Mr Chapman because of his acknowledged deficits in social communication and interaction, which are features of his autism spectrum disorder. It seems likely that his difficult time in custody thus far, and the need for him to be placed in protective custody for his own safety, are directly related to his inability to perceive and appropriately react to what to most people would be obvious cues from other inmates in the prison system. In my assessment, this has disproportionately increased the punitive effect of Mr Chapman's incarceration. It is a mistake in my view to assume that all inmates will deal with the restrictions and depredations of confinement and loss of liberty in the same way. I find that Mr Chapman's time in custody will have been more onerous and more difficult to cope with than most other inmates, and that this will persist until his release. In assessing the extent to which the community might expect Mr Chapman to be punished for this offence, and the implicit call for retribution that necessarily informs my sentencing discretion, I have taken account of these matters. I have also had regard to the fact that Mr Chapman's mother, on one view the most significant and obvious victim of this offence, has expressed very persuasive concerns for the safety of her son and his custodial prospects.
4. Mr Chapman has been in custody since the date of the commission of the offence on 2 October 2016. He would appear to have made considerable progress with his attitude to work, having demonstrated an interest in manual activities working with metal. However, his intellectual capacities are not such that he could be expected to remain limited to manual work, as his TAFE results clearly indicate. Mr Chapman has very good prospects of complete rehabilitation. I do not consider that he is at risk of reoffending.
5. Having regard to Mr Chapman's mental conditions, it is necessary to ensure that he has access to medical support and appropriate counselling facilities upon his release to parole. I consider that there are special circumstances why a significant variation of the ratio of parole to non-parole periods is indicated.
6. In my view a proper starting point in this case is a sentence of 8 years imprisonment. Mr Chapman is entitled to a discount of 25 percent for his guilty plea. I consider that, having regard to my finding of special circumstances, Mr Chapman should serve no more than 50 percent of that sentence in custody.
7. Daniel Chapman, for the wrongful killing of Stephen Chapman you are convicted. I sentence you to imprisonment for a term of 6 years consisting of a non-parole period of 3 years commencing on 2 October 2016 and expiring on 1 October 2019 with a balance of term of 3 years expiring on 1 October 2022. The first date upon which you will become entitled to release on parole is 2 October 2019.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2018