AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
9
Court of Criminal Appeal 18 April 2013

LIPCHIN, Sharon v R

[2013] NSWCCA 77

Sexual offences
CRIMINAL LAW SENTENCE APPEAL PAROLE PERIOD

Citation: LIPCHIN, Sharon v R [2013] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 18 April 2013
Judge(s): Bathurst CJ, Hidden J, Button J

Background

The appellant was a woman in her forties who was convicted in the District Court of four sexual offences arising from a single incident involving a 15-year-old boy who was a friend of her son. The offences, committed at her home after she encouraged the victim to drink wine, included two counts of indecent assault, one count of sexual intercourse with a person aged between 14 and 16 years (fellatio), and one count of attempted sexual intercourse.

The trial judge sentenced her to a principal term of 5 years imprisonment with a non-parole period of 2 years and 6 months for the sexual intercourse count, with other sentences running concurrently. For the two indecent assault counts, which carried a statutory standard non-parole period, the trial judge imposed fixed terms only, without specifying non-parole periods.

The appellant sought leave to appeal out of time, which the Crown did not oppose. She challenged both the failure to set non-parole periods on the indecent assault counts and the overall sentence as manifestly excessive.

  • Whether the trial judge erred in imposing fixed terms for the indecent assault counts without setting non-parole periods, given that a standard non-parole period applied to those offences under s 45(1) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the fixed terms imposed for the indecent assault counts should be treated as equivalent to the non-parole periods the judge would otherwise have set
  • Whether the 5-year sentence for the sexual intercourse count was manifestly excessive having regard to the objective gravity of the offence and the appellant's subjective circumstances

Decision

Indecent assault counts and fixed terms: The parties agreed that the trial judge erred by failing to set non-parole periods for the indecent assault counts, as s 45(1) of the Crimes (Sentencing Procedure) Act 1999 does not permit a court to decline to set a non-parole period where a standard non-parole period applies. The Court of Criminal Appeal accepted, drawing on an established line of authority, that the fixed terms imposed were properly treated as equivalent to the non-parole periods the judge intended to set. On that basis, the Court re-sentenced the appellant on count 5 (the more serious indecent assault) to a non-parole period of 12 months with a balance of term of 12 months, and left count 1 otherwise undisturbed in substance.

Manifest excess on the sexual intercourse count: Hidden J, with whom Bathurst CJ and Button J agreed, found the 5-year sentence for the sexual intercourse count to be excessive. Although the judge had correctly identified the offending as exploitative, the victim's age at the upper end of the relevant range (15 years), the absence of physical force, the brief duration of the episode, and the appellant's favourable prospects of rehabilitation placed the offence in the lower range of culpability for its kind. A sentence of 5 years against a maximum of 10 years was not proportionate in those circumstances.

Re-sentencing: The Court substituted a sentence of 4 years with a non-parole period of 2 years for count 3. That sentence was treated as sufficient to reflect the appellant's overall criminality across the four offences, given they formed component parts of a single brief episode and it was appropriate for the other sentences to run concurrently. The commencement date of the sentence for count 4 was adjusted by 6 months to avoid an undue extension of the parole eligibility date.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Sentences for counts 3, 4, and 5 quashed and the appellant re-sentenced as follows:
  • Count 3: Non-parole period of 2 years commencing 16 June 2011, expiring 15 June 2013; balance of term of 2 years commencing 16 June 2013, expiring 15 June 2015
  • Count 4: Non-parole period of 18 months commencing 16 December 2011, expiring 15 June 2013; balance of term of 18 months commencing 16 June 2013, expiring 15 December 2014
  • Count 5: Non-parole period of 12 months commencing 16 June 2011, expiring 15 June 2012; balance of term of 12 months commencing 16 June 2012, expiring 15 June 2013
  • Parole eligibility date: 15 June 2013; sentences to expire in totality on 15 June 2015

Key Takeaways

  • Under s 45(1) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court has no discretion to decline to set a non-parole period for an offence to which a standard non-parole period applies; imposing a fixed term alone constitutes error.
  • A well-established line of authority in the Court of Criminal Appeal treats fixed terms imposed in lieu of non-parole periods as equivalent to the non-parole periods the sentencing judge intended to set, allowing the appellate court to correct the form of the sentence without necessarily disturbing the substance.
  • Where multiple offences form component parts of a single brief episode, concurrent sentences are generally appropriate, and the principal sentence can properly be treated as reflecting the totality of the offender's criminality.
  • In assessing objective gravity for sexual intercourse offences involving a person aged between 14 and 16 years, the victim's age within the statutory range is a relevant consideration; proximity to the upper age limit can place an offence in the lower range of culpability.
  • Favourable rehabilitation prospects, a lack of prior convictions, and the isolated nature of the offending are relevant subjective factors that the Court confirmed can bear on the appropriate sentence, even where the offending was found to be exploitative and the offender continued to deny guilt.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 66C(3), 66D
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45(1)
- Sentencing Act 1989 (NSW)

Cases
- Collier v R [2012] NSWCCA 213
- R v Sea (CCA, unreported, 13 August 1990)
- R v KNL [2005] NSWCCA 260; 154 A Crim R 268
- R v Romano [2004] NSWCCA 380
- Boulad v R [2005] NSWCCA 289
- R v Katon [2008] NSWCCA 228
- Salvatore v R [2009] NSWCCA 104
- Kenny v R [2010] NSWCCA 6
- Mokhaiber v R [2011] NSWCCA 10
- R v Chishimba & Ors [2011] NSWCCA 212